AMERICAN BAR ASSOCIATION
TASK FORCE ON PRESERVATION OF THE JUSTICE SYSTEM
NEW ENGLAND REGIONAL HEARING
UNIVERSITY OF NEW HAMPSHIRE SCHOOL OF LAW RICH ROOM
Thursday, May 26, 2011
Court Reporter: Liza W. Dubois, RMR, CRR New Hampshire CCR No. 104 2
1 WELCOME AND INTRODUCTIONS PAGE
2 Dean John T. Broderick 5 3 David Boies 7 Theodore B. Olson 9 4
5
6
7 PANEL 1 12
8 Theodore B. Olson Hon. Dennis W. Archer 9 Dean John Broderick Hon. Raoul G. Cantero 10 Carol E. Dinkins Peter T. Grossi, Jr. 11
12
13 STATEMENTS
14 Hon. Linda Stewart Dalianis 12 Chief Justice, New Hampshire 15 Hon. Jonathan Lippman 18 16 Chief Judge, New York
17 Hon. Paul Reiber 27 Chief Justice, Vermont 18 Hon. Chase T. Rogers 48 19 Chief Justice, Connecticut
20 Hon. Leigh I. Saufley 55 Chief Justice, Maine 21 Hon. Robert A. Mulligan 64 22 Chief Justice for Administration and Management, Massachusetts 23 3
1
2 PANEL 2 76
3 David Boies Elaine R. Jones 4 Hon. Gerald Kogan Mary McQueen 5 Stephen L. Tober William K. Weisenberg 6
7
8 STATEMENTS
9 Christopher Seufert 76 Attorney of Brian & Patricia Baxter 10 Kirk Simoneau 84 11 Attorney of Wayne & Kristy Haggie
12 Professor Laurence H. Tribe 107 Harvard Law School 13 Richard A. Samuels 125 14 Chair, New Hampshire Business and Industry Association 15
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17 Lunch recess 137
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23 4
1 PANEL 3 137
2 Lady Booth Olson Jude Del Preore 3 Ned Madeira Jon L. Mills 4 Tommy Preston, Jr. Thomas L. Sager 5
6 STATEMENTS
7 Hon. Norma Shapiro 138 US District Court Judge 8 Eastern District of Pennsylvania
9 Don R. Federico 157 President, Boston Bar Association 10 Paul M. Monzione 168 11 President, New Hampshire Association for Justice 12 Marilyn B. McNamara 178 13 President, New Hampshire Bar Association 14 Hon. Paul Suttell 194 15 Chief Justice, Rhode Island
16 William S. McGraw 207 Clerk, Merrimack County Superior Court 17
18 CLOSING REMARKS AND ADJOURNMENT
19 Theodore B. Olson 208
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23 5
1 (Proceedings commenced at 11:07 a.m.)
2 DEAN BRODERICK: Can you all hear me?
3 CHAIRMAN OLSON: The ones that can't
4 aren't responding.
5 DEAN BRODERICK: The ones that
6 can't ...
7 Welcome this morning to the University
8 of New Hampshire School of Law. Those of whom who I
9 do not know, my name is John Broderick. I'm the dean
10 here. And before coming here, I was on our state
11 supreme court for 15 years.
12 This is a very important conference.
13 I want to welcome you, also on behalf of the local
14 cochair of which I am one, is Steve Tober, from
15 Portsmouth. Steve's on the ABA Board of Governors.
16 This conference would not be possible
17 without the people who are surrounding me. To my
18 right is Ted Olson, who -- along with David Boies,
19 are cochairing this event, and Lady Olson is the
20 honorary cochair of this event and will be hosting
21 a panel.
22 The issue that brings us here today
23 is fundamentally important not to the courts in the 6
1 narrow sense, but to the promise that the courts
2 represent, the constitutional promise the courts
3 represent. It's about people and access to justice.
4 It's about the promise, really.
5 Ted Olson and David Boies, to embarrass
6 them for a moment, are two of the most distinguished
7 lawyers in the United States. And for them to take
8 time out of what has to be an extraordinarily busy
9 schedule, not to come for a day or a morning, but to
10 make the kind of commitment that they've made to move
11 the needle on this issue nationwide is remarkable.
12 And for them to come here and for Lady Olson to come
13 here and spend this time and make this investment
14 really matters.
15 I want to congratulate Bill Robinson,
16 who's the president-elect of the American Bar. He
17 would have been here, as you saw on your program, as
18 a speaker, but his plane was delayed. So that's the
19 only reason he's not here. He's going to carry this
20 enterprise forward. Steve Zack, the current
21 president of the ABA, established this task force
22 because he realizes how important it is.
23 The last thing I want to say is how 7
1 honored we are at this law school to host this very
2 important conference. I want to thank my former
3 colleague chiefs from around New England and New York
4 and Massachusetts who have come here today.
5 I want to thank Professor Laurence
6 Tribe, who may have a few things on his schedule, but
7 he committed two years of his life at the Department
8 of Justice because he knows how important this is.
9 So welcome to all of you. I think this
10 will be a productive hearing. We look forward to the
11 testimony and I hope others here would like to say a
12 few words.
13 CHAIRMAN BOIES: We have a very full
14 and very important panel, series of panels, today, so
15 I'm not going to take up a lot of time. I just want
16 to emphasize that Ted and I are here because we
17 realize, and we hope all of you do and will even
18 more after this hearing, how important this issue is.
19 There's no issue that is more important to our
20 profession, and I would say to our country, than the
21 preservation of our justice system. It is, as
22 Justice Souter says, the safe place that our citizens
23 go when all other aspects of our society fail them. 8
1 And it is something that we depend on for our
2 economy, for our families, for our constitutional
3 rights, and for justice. And without the adequate
4 funding and until we restore adequate funding, the
5 promise of our justice system is going to be drained.
6 And we have, I think, a wealth of
7 knowledge here. I'm really in awe. I appear in
8 court a lot of times, I don't generally appear in
9 court before so many different chief justices, and
10 this is -- this is a great -- great opportunity for
11 all of us to learn. And I want to express our
12 appreciation for all of the time that you are giving
13 to this because we know how many other things you
14 have to do.
15 So thank you very much for being here
16 and let's get to it.
17 DEAN BRODERICK: Thank you very much.
18 CHAIRWOMAN OLSON: I would just like to
19 mention Mary Boies also -- David's wife, Mary --
20 another brilliant lawyer who's been lending many
21 hours to this task force. She's not here today, but
22 I want to acknowledge her, and also the members of
23 the task force themselves, many of whom -- almost all 9
1 of whom -- are here. Amazing, remarkable dedication.
2 We've had three formal business meetings and one
3 other hearing in Atlanta on February 9th. And it's
4 been truly gratifying and thrilling to work with all
5 of you, and I just wanted to thank all of you for,
6 again, coming today.
7 CHAIRMAN OLSON: Thank you. We'll see
8 more of our cochairs during the course of the day.
9 We have the -- a task force, we've
10 divided our task force into three segments. We have
11 three basic panels during the course of the day:
12 David will be chairing one, Lady will be chairing the
13 other, I'm chairing the first one.
14 You all know why we're here, but I
15 will just say this, that our judicial system in the
16 United States is the envy of the world. It is
17 responsible for our liberties, our freedom, our
18 safety, and the success of our economy.
19 Our judicial systems consume something
20 in the neighborhood of one percent of the resources
21 that we generate in our state and federal
22 governments. A tiny fraction. There is no waste
23 in the judicial system. It is -- it runs itself on a 10
1 relatively small number of people and produces
2 justice for everyone in this country, whether we go
3 to court or not. We are protected by our judges and
4 our judicial system because they deal with the
5 criminal cases and the civil cases and keep peace in
6 our society and allow our economy to have
7 predictability and dependability and stability and we
8 are cutting out of the budgets for our judiciary more
9 than the system can tolerate. And when we need our
10 judicial system, one day, each of us who will, it
11 won't be there or it won't be there on time. And
12 justice denied or justice delayed is justice lost.
13 So that is -- Steve Zack appointed
14 David and I and this task force to do two things:
15 To bring attention to the problem, to make people
16 realize the magnitude and the severity and the impact
17 of the problem, and to motivate lawyers and citizens
18 throughout the United States to do something about
19 it.
20 We did have, as Lady said, a very
21 successful hearing in Atlanta and this is a very
22 successful -- this is going to be a very successful
23 hearing here in Atlanta -- I mean in New Hampshire. 11
1 I will get this straight.
2 I'm just going to mention their names.
3 Other members of the task force that are up here
4 today are Dennis Archer, Dean Broderick, Carol
5 Dinkins, Raoul Cantero and Peter --
6 MR. GROSSI: Grossi.
7 CHAIRMAN OLSON: -- Peter Grossi.
8 Excuse me.
9 And I'm going to start right away
10 because we don't want to be behind on our panel
11 discussions.
12 We are going to have two panels of
13 chief justices. We have on the panel today or the
14 first panel, Justice -- Chief Justice Dalianis.
15 JUSTICE DALIANIS: It's okay. I answer
16 to just about anything.
17 CHAIRMAN OLSON: And it's not good for
18 a lawyer to mispronounce the name of a chief justice.
19 Let's see if I can do it again. Chief
20 Judge Jonathan Lippman from New York, and Judge Paul
21 Reiber, Reiber --
22 JUSTICE REIBER: There you go.
23 CHAIRMAN OLSON: -- Reiber of Vermont. 12
1 We've been -- David and I have been
2 running around trying to get the message out to the
3 media, so we haven't quite had time to do all the
4 homework we can.
5 So let's start. I don't know which of
6 you is going to go first, but we'd like to hear from
7 you as to what's happening in your particular state.
8 PANEL ONE
9 JUSTICE DALIANIS: Cochairs Olson and
10 Boies, Honorary Chair Olson and members of the task
11 force, as chief justice, I want to welcome you to
12 New Hampshire. Our story is about tough choices for
13 improving access to justice in the face of a severe
14 decline in our state resources and little likelihood
15 of more money in the future.
16 A year ago, my predecessor as chief
17 justice, Dean John Broderick, described our situation
18 this way: In short, we have no choice. The judicial
19 branch can either continue down the path of
20 incremental reductions in service or we can seek
21 those innovations that will permit the courts to
22 meet the needs of our 21st Century constituents.
23 He was right. Like our colleagues 13
1 around the country, we cut away at our operations to
2 meet budget reductions. We closed our courthouses
3 for a total of 12 days in fiscal year '11 and all
4 judges, administrators, and staff took unpaid
5 furlough days. We cut jury trials by a third.
6 With the concurrence of the Governor,
7 nine judgeships remain vacant. We held open more
8 than 10 percent of nonjudicial staff jobs which
9 inevitably slows down case processing. Some courts
10 began closing a few afternoons a week just to allow
11 for uninterrupted time to process cases. That
12 remains true today.
13 Judge days in our district court and
14 family division, which handle more than 80 percent of
15 our work, were cut back ultimately by 20 percent.
16 This year my colleagues and I on the supreme court
17 knew that we could not demand more handouts from the
18 legislature; that was unrealistic, considering the
19 state's still dire economic condition. We had to
20 work with lawmakers in the best interest of the
21 judicial branch.
22 At the same time, we knew that we had
23 to do a better job managing what resources we are 14
1 allotted. In short, we had to change. We also made
2 a fundamental decision. We concluded that it is
3 unfair to continue to try to balance the budget by
4 closing the courts to the public, so there will be no
5 more unpaid furlough days in the New Hampshire court
6 system. Our doors will be open, our judges,
7 administrators, and staff will be at work five days a
8 week. We will not shut down our courts again to save
9 money.
10 We knew, though, that by giving up the
11 savings from furlough days, we would have to find
12 the money elsewhere and that meant making painful
13 reductions in our staff which, ironically, also slows
14 down our operations and delays access to justice.
15 But we had to move forward.
16 First, through an extraordinary effort
17 by our administrative judges and staff and with the
18 support of the Governor and the State Legislature, we
19 are about to execute dramatic restructuring that will
20 make our system more efficient and improve, we hope,
21 access to justice.
22 On July 1 of this year, we will merge
23 our district and probate courts and our family 15
1 division into a single circuit court system. Overall
2 management restructuring will save more than $1.4
3 million a year.
4 By January of 2012, we will have
5 established a single circuit court call center to
6 provide prompt, efficient service to citizens while
7 freeing up our staff in the courts to focus on case
8 processing. Videoconferencing capabilities will be
9 expanded to cut costs of transporting prisoners to
10 courthouses for arraignments and other hearings.
11 Every court location, every county jail, the state
12 prison and the offices of the Public Defender will be
13 connected.
14 We will hire 20 part-time employees who
15 will work off-hours for the circuit court processing
16 cases. Pilot projects have demonstrated as much as a
17 100 percent increase in efficiency working off hours.
18 With financial backing from the State
19 Legislature, we will launch a paperless e-court
20 system that will include e-filing, electronic payment
21 of fees and fines, digitization of court records and
22 electronic access to court records by litigants,
23 attorneys, and members of the public. That is an 16
1 investment in the future that will provide
2 efficiencies and, we hope, better service for
3 the public.
4 We have also backed legislation that
5 would consolidate two of our busiest jury trial
6 courts in a newly renovated courthouse. Not all
7 the lawyers are happy about this, but we project the
8 merger will produce major savings and efficiencies in
9 case processing.
10 The New Hampshire Judicial Branch
11 Innovation Commission, which was the catalyst behind
12 this dramatic -- was the catalyst behind this
13 dramatic restructuring. The commission, which
14 created a mandate for change, was John Broderick's
15 idea when he was chief justice and then he left and
16 left it to me. But we've seen it through.
17 However, even with this huge effort to
18 enact change and the savings that will result, this
19 year our anticipated appropriation is still $3.2
20 million short of what we need to operate at our
21 reduced FY11 levels. As we all know, court systems
22 are people-intensive organizations. We do not have
23 programs to cut. So to help fill the gap, we cut our 17
1 staff. That was the hardest choice of all.
2 Earlier this month we implemented a
3 reduction in force of 73 positions throughout the
4 court system, including layoffs and early
5 retirements. In February we had 527 nonjudicial
6 employees in our courts. By the end of summer, we
7 will have 454 nonjudicial personnel, a 13 percent
8 recent reduction in staff. This was on top of about
9 100 staff jobs that were already being held vacant.
10 That's the difficult reality of our state court and
11 the public it serves now and into the future.
12 In closing, I commend this task force
13 for its effort to shine the public spotlight on the
14 issue of underfunding for our courts and on the
15 impact that has on equal access to justice for all.
16 When it comes to which part of government gets what
17 appropriation, this is the justice system; a core
18 function of government, a branch of government, and
19 that should mean something. But let me say this,
20 too. From where I sit, and I've been a judge in New
21 Hampshire for more than 30 years, it is also our
22 responsibility to evolve.
23 In New Hampshire we recognized that it 18
1 was not possible to continue business as usual while
2 waiting for more revenue to come in from the
3 Statehouse. Not in this climate, not in this
4 economy. We had to accept the reality that if we
5 wanted to provide better service to the citizens who
6 need our courts every day that we were going to have
7 to do things differently and that's exactly what
8 we're going to do.
9 Thank you.
10 CHAIRMAN OLSON: Our panel will have an
11 opportunity to do some questions, but I think after
12 we hear the testimony from everyone.
13 JUDGE LIPPMAN: Okay.
14 Chairman Boies, Chairman Olson,
15 Honorary Chair Olson, distinguished members of the
16 task force, I am grateful to all of you and to
17 President Zack for this opportunity to testify today.
18 Every day, in courthouses around the
19 country, we see fallout from the troubled economy
20 reflected in our court dockets: In New York, record
21 filings of up to 4.7 million new cases a year, a
22 33 percent increase in family violence cases,
23 hundreds of thousands of newly filed consumer 19
1 credit cases, 76,000 pending foreclosure proceedings.
2 Daunting trends by any standard. State courts are
3 truly the emergency room for the ills of society and
4 our caseloads are the proof of that fact.
5 On April 1, New York state adopted a
6 new budget intended to close a $10 billion deficit
7 which contains dramatic spending cuts for all of
8 state government, including an unprecedented
9 $170 million, or 6.3 percent, reduction in the
10 judiciary's budget. That was $70 million more than I
11 had voluntarily cut from our request with the results
12 being layoffs of well over 400 court employees, the
13 courthouse day ending a half-hour early to avoid
14 overtime costs, sharply curtailed arraignments,
15 and countless other painful measures in service
16 productions.
17 Press reports, which I know you are
18 familiar with, have graphically described the adverse
19 consequences of this year's budget reduction for the
20 New York Judiciary, our court family, and our
21 continued ability to deliver timely and efficient
22 justice. My written testimony describes in detail
23 our present circumstances and I will not belabor 20
1 those in my remarks today.
2 Despite it all, in New York and other
3 states, the courts are still constitutionally bound
4 to deliver justice. Our doors must and will continue
5 to be open to all. But what is most important is the
6 substance of what takes place behind those doors.
7 How do we preserve access to justice for all in this
8 time of crisis for state judiciaries?
9 A record number of Americans
10 desperately need the production of our laws but
11 cannot afford a lawyer to help them deal with the
12 essentials of life: a roof over their heads, family
13 stability, personal safety free from the domestic
14 violence, access to health care and education, or
15 subsistence income and benefits.
16 Last year 2.3 million litigants
17 appeared in the New York courts without a lawyer,
18 including 98 percent of tenants in eviction cases,
19 95 percent of parents in child support matters, and
20 two-thirds of homeowners facing foreclosure
21 proceedings. Many of our courtrooms are standing
22 room only, filled with vulnerable and frightened,
23 unrepresented litigants, many of them newly indigent. 21
1 Unfortunately, for everyone lucky
2 enough to be represented by a legal services provider
3 in New York City, another eight to ten are being
4 turned away. We have redoubled our efforts within
5 the judiciary and in partnership with the Bar to
6 expand pro bono programs and provide more services
7 for the self-represented, but these efforts have not
8 even come close to meeting the overwhelming needs of
9 low-income New Yorkers.
10 I have become convinced that the
11 totality of what we are doing in New York, and as far
12 as I can see around the country, is simply not
13 enough. It is simply not enough to rely on revenue
14 streams like IOLTA or court fees that fluctuate with
15 the economy or even to rely on the wonderful good
16 work of the Bar. Access to justice cannot be a
17 pay-as-you-go enterprise dependent on funding that is
18 unstable by nature and which often serves to expand
19 access to justice with one hand while creating new
20 obstacles with the other.
21 What is needed, I believe, is the
22 unequivocal commitment of state government to fund
23 civil legal services, a permanent commitment backed 22
1 by public fist, that recognizes that civil legal
2 assistance for poor and vulnerable litigants pursuing
3 the necessities of life is a basic responsibility of
4 state government every bit as important as the other
5 fundamental priorities of civilized societies and
6 governments.
7 We don't say that there won't be public
8 schools or hospitals this year to serve our children
9 or treat our sick because the economy is bad, just as
10 we cannot say that we won't fund civil legal services
11 for the indigent because it is too difficult to
12 afford.
13 Access to justice is not a luxury,
14 affordable only in good times. We can no longer
15 be passive or reticent about this central issue,
16 particularly when state judiciary budgets are in
17 peril and we are looked to for leadership as to our
18 institutional priorities, what do we stand for.
19 On Law Day one year ago, I began our
20 own efforts in New York by forming a task force to
21 expand access to civil legal services headed by the
22 former president of the Federal Legal Services
23 Corporation, Helaine Barnett. Last fall I personally 23
1 presided over four public hearings around the state,
2 along with top leaders of the state Bar and the
3 judiciary, to assess the extent and nature of the
4 unmet civil legal needs. We all recognized that if
5 the judiciary and the profession in our state did not
6 stand up for civil legal services for the poor, no
7 one else would.
8 The Legislature adopted a joint
9 resolution endorsing these hearings and requesting
10 that the chief judge report and make recommendations
11 annually to the Governor and the Legislature on the
12 need for financial resources, in effect,
13 institutionalizing the hearings and putting the stamp
14 of approval on the process we propose and now will
15 follow year after year, a process that has a direct
16 impact on the judiciary's budget in New York.
17 What we learned from the hearing is
18 that New York is, at best, meeting only 20 percent
19 of the civil legal services requirements of the
20 indigent. The task force recommended that the
21 judiciary include $25 million for civil legal
22 services in the budget for this fiscal year as part
23 of a four-year phased-in effort to increase annual 24
1 funding by a hundred million dollars. I requested
2 these monies as being integral to the judiciary's
3 budget because what happens inside every courtroom is
4 our responsibility. Preserving civil legal services
5 for the poor is not tangential to the judiciary, but,
6 rather, central to carrying out our unique,
7 fundamental, constitutional mandates dispensing
8 justice to all of our people.
9 Despite the economic tsunami that we
10 face and the deep cuts imposed on the judiciary, the
11 final budget approved by the Legislature and the
12 government included $12.5 million for civil legal
13 services and an additional $15 million in our budget
14 to rescue New York's IOLTA fund with the end result
15 being $27.5 million of funding for civil legal
16 services under the umbrella of the judiciary's
17 budget.
18 To me, most importantly, we established
19 a vital precedent for our state and possibly
20 elsewhere by implementing a systemic annual process
21 to fund civil legal services through state general
22 fund monies that are part and parcel of the
23 judiciary's budget. At the Legislature's request, 25
1 we hold hearings to assess the gap in civil legal
2 representation for the poor, we put monies in the
3 judiciary budget to close or at least narrow that
4 gap, and the Legislature and the Governor act on our
5 budget requests.
6 While there is no magic formula for
7 what exact system will work best in New York or
8 elsewhere, we must in every state create the plumbing
9 and infrastructure to ensure stable, consistent
10 funding for civil legal services now and for the
11 future. This is not just a moral and ethical issue.
12 What too many people fail to recognize is that
13 publicly funded civil legal representation pays for
14 itself many times over. At our hearings, the most
15 telling testimony was counterintuitive in nature. It
16 came from business leaders, bankers, property owners,
17 health care providers, and government and community
18 leaders who stated again and again that increasing
19 access to legal assistance benefitted their own
20 institutional performance and financial bottom lines.
21 We created a public record that justified the funding
22 of civil legal services as making good economic sense
23 for our state. Our task force concluded that there 26
1 is a total return to New York of close to five
2 dollars for every dollar spent to support civil legal
3 services by enabling people that pay their bills
4 preventing unwarranted evictions and homelessness,
5 afforded foster care placements and other social
6 services costs and bringing federal funds into the
7 state.
8 In the end, there is the absolute
9 necessity of a much greater financial commitment from
10 state government and of strong leadership by judicial
11 and Bar leaders in our respective states to establish
12 a systemic annualized process to fund civil legal
13 services through the public fist. And to be clear
14 again what we are talking about are those indigent
15 litigants with life-altering legal problems. Equal
16 justice for all under the law is inextricably linked
17 to court funding levels. Increasing court funding
18 without ensuring access to justice is a hollow
19 victory.
20 The state courts must have the
21 resources they need, not just as an end to itself,
22 but to support their constitutional and ethical
23 role as the protector of the legal rights of our 27
1 Americans.
2 Every person, regardless of means, is
3 entitled to their day in court. The rule of law, the
4 very bedrock of our society, loses its meaning when
5 the protection of our laws is available only to those
6 who can afford it. We might as well close the
7 courthouse doors if we are not able to provide equal
8 justice for all, our very reason for being. This is
9 the fundamental challenge facing the justice system
10 today in these very trying fiscal times for state
11 judiciaries.
12 Thank you.
13 CHAIRMAN OLSON: Thank you,
14 Chief Judge.
15 JUDGE LIPPMAN: Thank you.
16 JUSTICE REIBER: Good morning. Let me
17 start by thanking the task force for the work it's
18 doing. I appreciate very much the invitation to
19 testify here this morning.
20 CHAIRMAN OLSON: Can everyone hear?
21 JUSTICE REIBER: Is this on?
22 CHAIRMAN OLSON: I don't know. I think
23 it's working. 28
1 JUSTICE REIBER: Okay. I want to say
2 what -- how impressive it is to listen to colleagues
3 at the head of other courts that border our state to
4 hear the work that they're doing. What I'd like to
5 talk to you about is perhaps something a little bit
6 farther down the road.
7 Vermont started dealing with its budget
8 problems about four years ago. Let me -- let me put
9 it in this context.
10 Two years ago, Tom Brokaw, in a New
11 York Times op-ed called on states to trim their
12 budgets by eliminating wastes and duplication in
13 infrastructure. He quoted a member of a special
14 bipartisan state commission that endorsed savings
15 through consolidation of services who said, our
16 system of local government has barely evolved over
17 the past 100 years and we are still governed by the
18 same archaic institutions formed before the invention
19 of the light bulb, telephone, automobile, and
20 computer.
21 Vermont's courts are working hard to
22 change their business model, to establish a renewed
23 and resilient system of justice. We are addressing 29
1 the historic conventions that have prevented us from
2 consolidation of services, working to break down the
3 traditional vulcanized structure of Vermont courts.
4 We are making changes to stabilize court operations
5 in the future, even in times of economic uncertainty,
6 but change has not been easy.
7 As the Brokaw piece said, proposed
8 changes to the structure of government will meet
9 stiff resistance from everyone who stands to lose
10 influence or a job. We face such opposition in
11 Vermont. But last year, to the amazement of many,
12 we witnessed reform of the courts when an historic
13 restructuring bill passed the State Senate with not
14 a single dissenting vote and a similar very positive
15 result out of the House.
16 In remarks recently at a ceremony,
17 honoring one of our judges who made significant
18 contributions to this effort, the powerful state
19 senator who chairs the judiciary committee recalled a
20 meeting we had in December 2009 before the start of
21 the 2010 legislative session when he said, Chief,
22 I've looked over the recommendations of your
23 Commission on Judicial Operations and, frankly, there 30
1 is no chance of this passing.
2 Vermont is a mountainous state with a
3 population that is less than most cities in America,
4 but we support the same infrastructure of many larger
5 states. Not in numbers, but in form. One could
6 make the argument with states like Vermont for
7 consolidation with contiguous states, at least with
8 respect to some state services. In some measure, an
9 effort to do just that was made more than 200 years
10 ago. It was not any more successful then than I
11 expect it would be now, particularly with respect to
12 the justice system, but provincial concerns tend to
13 define the plight of state government today in every
14 venue when it tries to unwind historic norms.
15 My state is fiercely independent with
16 independent-minded people prone to let their neighbor
17 be. The court system is respected by the people, but
18 most associate it with the distinguishing features of
19 the local county court. Our trial bench is small;
20 nearly every judge sits in every court. There are
21 more than a few courthouses where a single
22 multijurisdictional judge sits on every single
23 docket: criminal, family, civil, sometimes all on 31
1 the same day. Historically, the courts in Vermont
2 developed a local county-based institution even
3 though Vermont does not employ a strong county form
4 of government. Many of the county courthouses are
5 old, iconic New England structures located in the
6 shire town.
7 The antiquated system had few problems
8 as long as the money was there, but when the economy
9 turned downward, the mandates and statutes for clerks
10 and courts in certain locations around the state,
11 statutory salaries and expenses, prevented us from
12 managing the budget to gain efficiencies and to move
13 resources to where the need was greatest. These
14 mandates limited the choices for finding savings when
15 our budget was cut again and again and again.
16 The laws handcuffed the administration
17 of the courts. They required us to spend money where
18 it wasn't needed, without regard to duplication or
19 waste. These laws obligated the statewide budget,
20 the statewide judiciary budget, to support county
21 court labor and other expenses over which we had
22 little or no control.
23 Although remnants of the old system 32
1 remain now, a lot has changed. Under the law passed
2 last year, we are more centralized than disparate in
3 the management of the court structure. Today the
4 court administrator in Montpelier can better address
5 the dockets in courts requiring attention, he can
6 harmonize limited resources with demand. Today
7 Vermont has moved to the uniform court structure that
8 was passed in a constitutional amendment in 1974, but
9 that languished when the Legislature failed to follow
10 through with the necessary statutory changes.
11 Why did we wait so long? It took 36
12 years. The political climate was not right, many
13 factions within the judiciary itself opposed
14 unification. Obviously the shrinking budget has
15 helped to make the choices more clear.
16 In contrast to the 70s, over the last
17 few years the members of the supreme court have been
18 unified in the objective to reform the system. The
19 supreme court's approach from the outset was not
20 simply to reduce spending. We believe that the court
21 structure needed reform in order to gain efficiency.
22 But more important, reform was required in order to
23 attain stability in the day-to-day operations of the 33
1 court system. We believed that this was necessary to
2 preserve and improve access to justice. Our goal was
3 to improve the capacity of the judicial system to
4 balance fluctuating appropriations against the ebb
5 and flow of the needs of the citizens of Vermont in
6 all corners of the state. In essence, we sought to
7 increase the elasticity of the resources we have at
8 our disposal.
9 Following the bill last year, we have
10 started down this road, but we are not there yet and
11 interim dramatic measures have been implemented to
12 address the ongoing funding problems that we have.
13 But there are improvements. A year ago every court
14 in our state was closed two and a half days every
15 month and we had a 12 percent vacancy rate. Today we
16 have reduced court closings to one day a month and a
17 one to two percent vacancy rate. But we are seeing
18 the consequences of court closings. There is growth
19 of backlog in portions of the domestic docket, time
20 to disposition in TPR cases has spiked, and there are
21 other dockets that lag behind. Court closing dates
22 are stopgap measures. They are not a permanent
23 solution. But now, at least in my state, they 34
1 threaten to become the norm. That is the problem
2 with stopgap measures.
3 When the state's revenues collapsed, we
4 were forced to tackle our shortfall in two tracks.
5 There was a need to rapidly decrease spending.
6 Everyone in state government had a responsibility to
7 contribute to the solution. We decided that we could
8 not simply say no to budget cuts demanded of us.
9 When we adopted the interim measures, we were clear;
10 systemic change was the goal, but we needed time and
11 the immediate solutions were a means to that end.
12 We also acknowledged from the beginning
13 that the cuts to our budget would probably never be
14 replaced. At various times there has been tremendous
15 pressure on every element in state government to
16 decrease spending. Some of what we did was to manage
17 expectations, both internally and externally. The
18 goal was to establish a new business modifying the
19 structural problem as the major contributor to the
20 fragility of the system, not only money. While we
21 identified the structural impediments to making
22 better choices and signaled that direction from the
23 start, we did not impose a specific solution, but, 35
1 rather, through the Commission on Judicial Operations
2 that we formed, conducted a very intensive evaluation
3 of the courts in order to better understand the
4 problem and thereby propose a more meaningful
5 solution.
6 We held more than 40 focus groups all
7 over the state and solicited response to online
8 questionnaires for everyone, including the public at
9 large. We asked everyone for ideas for saving money,
10 what they thought about regionalization of judicial
11 services, court closings through consolidation, and
12 the facilitator of our sessions began every meeting
13 with the words, hold nothing back, give us your
14 ideas, everything is on the table.
15 We were candid that our desire was to
16 change the structure to more intelligently manage the
17 resources the state and counties spend on the courts
18 without reducing judicial services. We made the case
19 that in order to avoid perverse consequences of
20 irrational budget cuts, this was required through
21 reform.
22 We told them metaphorically that what
23 the state needed and didn't have was a traffic cop 36
1 standing in the middle of an imaginary roundabout
2 continuously evaluating the flow of the pipelines of
3 all the various dockets regionally and statewide and
4 directing the state's limited resources to the
5 greatest need.
6 The process was useful for a number of
7 reasons. While not everyone agreed on solutions, we
8 gained consensus about the problem. We were able to
9 educate a broad range of people about the structure
10 of the courts and the problems that created -- that
11 were created in the economy. We received valuable
12 input about the needs of court users that tended to
13 support structural reform and we gained support for
14 fixing the structural problem.
15 I recall at one point in the course
16 of this effort we learned that members of the
17 Legislature had begun to hear from constituents
18 about the process and were beginning to appreciate
19 the problem even before the commission's proposals
20 were made.
21 We set high expectations for what we
22 wanted out of this process, identifying access to
23 justice as the core value at stake. We told the 37
1 focus groups that we were not engaged in an effort
2 to simply cut costs, but, more importantly, our
3 objective was to improve the availability of judicial
4 services through better management.
5 The day the legislation passed I'll
6 never forget; it was a Saturday afternoon and was a
7 tremendous moment. With the tools we have now
8 through restructuring improvements -- with the tools
9 we have now through restructuring, improvements are
10 in progress, but technology is the key to our very
11 survival. There are problems we're facing now, to be
12 sure, but we are getting there.
13 Finally, let me -- if I might, permit
14 me to touch on a subject of concern that one of my
15 colleagues here mentioned.
16 We need to recognize that underfunding
17 state courts compounds other problems that already
18 exist in the nation's justice systems. As with other
19 states, we have seen a dramatic rise in the number of
20 self-represented litigants. This is a complex issue,
21 but some of the problem relates not only to the cost
22 of litigation, but to the public perception of the
23 cost of litigation. 38
1 We have a healthy and collaborative Bar
2 in Vermont. It's not unified. And it is a -- but it
3 is a partner more often than not with supreme court
4 initiatives and that makes a tremendous contribution
5 to representation of low-income litigants in the
6 civil courts.
7 In my home county right now, Rutland
8 County, a low bono/pro bono initiative has started
9 and is having great success. But there's a limit to
10 what we can ask and what the lawyers can do. The
11 self-represented population in the courts puts great
12 pressure on staff and the judge. It retards the pace
13 of the process and it increases the risk of untoward
14 results.
15 More lawyers doing pro bono work
16 would help, but the trends do not favor that result.
17 Students are graduating law school without jobs and
18 oppressive debt. The vast majority of the Bar is
19 an asset to the legal system and volunteer time for
20 the betterment of the courts, but lawyers in law
21 firms focus more and more on the bottom line as
22 Tony Kronman described in his book, now nearly 20
23 years ago. I'm hopeful that as a profession from law 39
1 schools to the practicing Bar we will begin to find a
2 new paradigm, a new normal, just as Vermont has tried
3 to pursue through court reform.
4 Going back to the old days is not the
5 solution, although the same ideals still hold true.
6 At the Vermont Supreme Court, our approach has been
7 to change our business model. Technology is how we
8 believe we're going to advance on that in hand with
9 the management of flexibility that we now have.
10 Thank you very much.
11 CHAIRMAN OLSON: Thank you, Chief
12 Justice Reiber.
13 We are, predictably, a little bit
14 behind the schedule that we set for ourselves, but we
15 knew we were going to have this problem because we
16 wanted to hear from as many people as possible.
17 So I'm going to -- and we do want to
18 give our panel an opportunity to question this panel
19 and so we're -- I'm just going to make the command
20 decision to do that and we'll just eat it; you guys
21 are going to have to eat lunch more quickly.
22 So, Dennis.
23 JUDGE ARCHER: Thank you very much for 40
1 the presentations.
2 As the states have cut your budgets, as
3 well as others around the country, and the courts
4 adjusting to the budget cuts by being closed on
5 business days, normal court business days, the
6 layoffs of court personnel or actual terminations
7 because you cannot afford to keep them on and the
8 personnel that sets trial dates to get people an
9 opportunity to be heard, would you describe this as a
10 crisis of the courts or would you describe this as a
11 crisis of the justice system.
12 JUDGE LIPPMAN: Well, I think -- I
13 think it's a crisis of the justice system. I think
14 we're all partners in this and I don't think you can
15 separate the courts out from the other entities that
16 make up the justice system.
17 So I think that the ultimate
18 constituent, the public, is the one who suffers, but
19 certainly there is, at least in New York, and I'm
20 sure in the other states, very much a common purpose
21 with our practices in the justice system to make this
22 work because I don't think we can do it in a vacuum.
23 So I think it is a crisis in the 41
1 justice system and I'd even go further. I think
2 certainly in terms of the states, it is a crisis in
3 state government, but it's not necessarily being
4 addressed.
5 JUSTICE DALIANIS: I think it's a
6 crisis of both. I think the overarching justice
7 system is certainly suffering, but in our day-to-day
8 lives, when we're trying to make it all work, the
9 practical sometimes takes precedence over the
10 theoretical.
11 JUSTICE REIBER: I would agree with
12 both of them.
13 CHAIRMAN OLSON: Yes.
14 JUDGE CANTERO: You've identified a lot
15 of problems and a lot of budget cuts, and that's
16 going on around the country. However, taking it from
17 the Legislature's point of view in each state, the
18 response is, we hear you, but everybody is suffering
19 like that and we're not just cutting you, we're
20 cutting everybody because we just don't have the
21 revenue that would provide for an adequate funding.
22 What kind of -- it's -- we know what
23 the problem is. What kind of solutions can we 42
1 propose to state Legislature?
2 For example, in Florida, where I come
3 from, one of the proposals that eventually did not
4 pass in the Legislature was to implement a fixed
5 percentage of the budget that would go to the
6 judiciary every year. It was something like 2.25
7 percent. That eventually didn't work out, even the
8 courts didn't want it because depending on the year
9 and the revenues, it may not be enough. But I think
10 that in addition to identifying problems to the
11 Legislature, we need to also identify possible
12 solutions, or at least provide a framework for
13 creating solutions together.
14 What have you heard, what can we offer?
15 JUSTICE DALIANIS: The one thing that
16 helped us this year was that the Legislature actually
17 recognized that the judicial branch is in the
18 Constitution. That's a theme that could resonate in
19 other places, I suppose. We didn't push it too hard,
20 but we did thank them very much for noticing that,
21 and in the budget process, to tell you the truth, as
22 bad as it is, the New Hampshire Judicial Branch has
23 done better than any other part of state government 43
1 this year and I think it's for that reason alone.
2 JUDGE LIPPMAN: You know, I think the
3 answer is to some degree that you can't -- I don't
4 think we can fall into the trap of finding financial
5 solutions for them that wind up what I talked about
6 in the context of civil legal services, being the
7 judiciary as a pay-as-you-go operation. You know,
8 when they start saying the only way the judiciary can
9 meet its responsibilities is by filing fees and all
10 this kind of thing, I think it really is a problem in
11 terms of access to justice.
12 So the solution, I think, is to get
13 across to them, yes, that we're a separate
14 independent branch of government in the Constitution.
15 And it's not a question of wanting to be treated
16 differently than the other branches and everything
17 else in state government; it's what are the
18 consequences of treating us the same. And I think
19 that's what we have to get across, that the -- the
20 distinctiveness of the judicial function and what
21 are the consequences of these across-the-board kinds
22 of budget reductions.
23 MR. GROSSI: Could I just follow up on 44
1 that?
2 Last year, I guess, the New York Court
3 of Appeals held in the context of the judicial
4 salaries that the Legislature was actually violating
5 the Separation of Powers Doctrine.
6 JUDGE LIPPMAN: Yes.
7 MR. GROSSI: Did that make you popular
8 with that? How's that been working out?
9 JUDGE LIPPMAN: Well, that's a good
10 question.
11 Let me say that since I was the
12 plaintiff in that suit, and you can't be the
13 plaintiff and a judge in the same case, I was
14 recused -- I recused myself from the case.
15 But what they did find is that it was
16 unconstitutional for the Legislature to link judicial
17 salaries with other issues that had no relevance
18 to the judiciary, whether it be the salaries of
19 legislators or executive branch officials, or issues
20 like ethics reform or whatever else.
21 What the court said, my colleagues
22 said, it's unconstitutional, stop doing that, and
23 we're not going to intrude into your branch of 45
1 government, but we -- the court told them, you can't
2 do that anymore and the end result -- and I don't
3 know if it was directly attributable to the case --
4 was the formation last year of a Judicial Salary
5 Compensation Commission that went into effect this
6 last April 1, and it's a commission that provides
7 for judicial pay raises by operation of law unless
8 they're abrogated by the Legislature and the
9 Governor.
10 And so the commission has not given
11 its recommendations yet, it's really just in the
12 formation stages, but whatever they recommend for
13 raises for the judiciary over the next four years,
14 each of the next four years, will become law
15 automatically unless abrogated. And I am -- maybe
16 confident is too strong a word, but I'm very hopeful
17 and believe that there will be a major catchup
18 increase for judges in New York after 12 years
19 without even a cost-of-living increase and after
20 that, hopefully, cost-of-living increases, at least
21 to keep them current.
22 So I think it's going to be worked out,
23 and -- but it was an unbelievable situation we're 46
1 talking about, the separation of powers and an
2 independent branch of government.
3 CHAIRMAN OLSON: I think time for one
4 more.
5 MS. DINKINS: Yes, please.
6 It's all been very informative and
7 provocative and coming from a large state with a
8 large population, I wondered whether the chiefs
9 in this region had explored any type of regional
10 approach to efficiency in economy.
11 JUSTICE REIBER: Yes, we -- we
12 certainly have. The three northern New England
13 states got together -- started getting together
14 when John was still chief, and we have been talking
15 and have been collaborating on jointly contracting
16 for certain services -- interpreters, things like
17 that. I can't tell you exactly where that stands
18 today, but I -- but we -- we certainly are paying
19 attention to that.
20 Part of the -- you know, part of the
21 rationale behind that is it is incumbent upon us to
22 do everything we can to -- and this is my view -- to
23 make sure that we are using what funds we have as 47
1 intelligently as possible, as I guess I've said, and
2 I think it only behooves us to do that. I think we
3 have an obligation and responsibility to do that.
4 So, yeah.
5 JUSTICE DALIANIS: Our administrators
6 of working on collaborative projects, not just
7 interpreters, but also the possibility of pooled
8 purchasing and transcription, other things like that.
9 CHAIRMAN OLSON: I want to thank our
10 panel. I know that our task force would like to keep
11 you another couple of hours because there's so much
12 we can learn and we want the American people to hear
13 what you're telling us.
14 But we do have your reports; we're not
15 by any means done. We're going to keep after this.
16 You'll probably be hearing from us again.
17 Thank you so much for the time that you
18 put into this.
19 JUDGE LIPPMAN: Thank you.
20 JUSTICE DALIANIS: Thank you.
21 JUSTICE REIBER: Thank you.
22 CHAIRMAN OLSON: Our next panel
23 consists of the Chief Justice for Administration and 48
1 Management of Massachusetts, Robert Mulligan; Chief
2 Justice of Connecticut, Chase Rogers; and the Chief
3 Justice of Maine, Leigh Saufley.
4 Did I --
5 JUSTICE SAUFLEY: Very good.
6 CHAIRMAN OLSON: Wow.
7 Thank you very, very much for being
8 with us. Here we go.
9 JUSTICE ROGERS: Good morning, or good
10 afternoon, now. My name is Chase Rogers. I'm here
11 to address you in my role as chief justice of the
12 Connecticut Supreme Court.
13 I first want to thank you for the honor
14 of having the opportunity to testify before you
15 today. I plan to limit my comments today to the
16 critical issue of providing access to our courts
17 even when funding is severely limited.
18 By way of background, Connecticut,
19 we have a unified court system with 201 authorized
20 judges and 4,200 employees. Our budget is about
21 $500 million, which represents about three percent of
22 Connecticut's state budget.
23 In addition to our core of related 49
1 functions and adjudicative duties, the judicial
2 branch provides a host of other services, including
3 adult and juvenile probation, victims' services,
4 child support enforcement and operating the juvenile
5 detention facilities.
6 I highlight this because while funding
7 for some of these nonadjudicative functions has
8 increased over the past ten years, they now represent
9 one-half of our budget. On the other hand, funding
10 for our core related functions have remained
11 essentially flat during the same ten-year period.
12 This stagnation is compounded by
13 several cuts unilaterally endured during the last
14 fiscal year by our previous Governor. To address
15 this shortfall, we were forced to close one juvenile
16 court, two law libraries, froze nonunionized
17 employees' salaries, eliminated reimbursements for
18 out-of-state travel, instituted a hiring freeze and
19 furloughed our employees and judges for seven days
20 during the past two and a half years. We also
21 currently have 17 judge vacancies.
22 We face different financial challenges
23 this year, as the state is facing its largest deficit 50
1 ever. In response, the Connecticut General Assembly
2 enacted a biannual budget that included savings of
3 $2 billion in anticipated employee union concessions.
4 Additionally, the Governor made it very clear that if
5 the deal was not reached, about 4,700 state employees
6 would be laid off, which would mean more than 400 of
7 these layoffs would occur in the judicial branch.
8 While the Governor and the Coalition
9 have since agreed to a union concession package, it
10 still must be ratified by the unions and approved by
11 the Legislature. So the situation for us remains
12 very fluid, even today. To address these
13 uncertainties, we have been working on various
14 contingency plans. These include laying off branch
15 employees throughout the system, closing more
16 courthouses, eliminating special dockets, and closing
17 additional law libraries. As you can imagine, any of
18 these measures alone would dramatically impact the
19 services that we can provide to our residents.
20 Of course, we're not alone. This is a
21 difficult time for state courts across the country.
22 To respond to budget reductions, many of our state
23 judicial branches have been forced to reduce or 51
1 freeze salaries, impose layoffs, furlough, delay the
2 filling of vacancies, reduce the hours of operation,
3 and increase fines and fees. And I just want to
4 spend a second on the fines and fees and reducing
5 hours.
6 Unfortunately, the option of reducing
7 the hours of operation and increasing fees and fines
8 may have a serious negative impact on access to
9 justice. How does a working single mom who's trying
10 to pay a fine, which is already going to result in
11 fewer groceries for the week, take care of the
12 problem if no business is conducted after 4:00 p.m.
13 without losing more work time? And at what point
14 do fees become simply too high for a low-income
15 individual to pursue his or her rights? It's not
16 hard to imagine a scenario where the courts are
17 really available only to the people with time and
18 money. Fortunately we haven't had to implement --
19 and I'm going to fight it to the death -- either one
20 of those options, although both of them still need to
21 be considered.
22 The problems we face are compounded
23 because in times of trouble, residents desperately 52
1 seek help from the courts much more than in
2 prosperous periods. In other words, the courts
3 cannot simply say, "Closed for business due to lack
4 of funding." Our statistics tell the story.
5 Over the past four years, Connecticut
6 has seen an increase in the number of civil cases
7 added to our dockets by 37 percent, mostly
8 attributable to the increase in foreclosures and
9 contract collection cases.
10 We are also seeing more people
11 appearing before us who lack the funds to hire an
12 attorney. In Connecticut, for example, in 2010, an
13 astounding 84 percent of all family cases and 27
14 percent of all civil cases had at least one party who
15 was self-represented. The numbers are close to 90
16 percent in housing matters. This is my biggest
17 concern, the lack of legal representation, because I
18 believe that this is changing the system in ways that
19 we cannot even imagine yet. What we do know is that
20 the lack of attorney representation puts even more
21 pressure on the court system to provide a level
22 playing field in order to ensure that justice is
23 done. It does not appear that the number of 53
1 self-represented parties is going to go down. The
2 situation is even of greater concern when you
3 consider that legal aid organizations are able to
4 meet only a small fraction of the legal needs of
5 those who cannot afford an attorney.
6 Another significant challenge which was
7 alluded to before facing the system throughout the
8 country is the growing number of limited English
9 proficiency residents. Like other states, we have
10 had to be creative because funding is not available
11 for additional interpreters. To respond to this
12 need, the Connecticut judicial branch has contracted
13 with a language services company that provides, over
14 the telephone, translations in more than 170
15 languages.
16 And I know you had asked about
17 cross-pollination between the states. I believe that
18 at least two other states have come down to see how
19 that's working in Connecticut and we tried to -- you
20 know, when we find something, we try to share that
21 information.
22 In addition, we've enhanced our Web
23 site to better serve both self-represented clients 54
1 and the elderly population. We also now have many
2 how-to publications that have been translated into
3 Spanish and other languages and we've developed video
4 to assist self-represented parties in navigating a
5 particular court process so that they have the
6 information they need before coming to court.
7 We've also increased our use of
8 videoconferences. For example, the appellate court
9 has begun using videoconferencing equipment in
10 matters involving incarcerated, self-represented
11 parties so that prisoners don't need to be
12 transported to the court.
13 Why do I mention some of the things
14 we've been doing? I think it's important to know
15 that we're not just, you know, resting on the
16 status quo. And while all of these initiatives
17 are important and necessary, there is only so much
18 creativity we can accomplish. We are not a
19 discretionary agency and I would argue that our
20 courts, particularly in these bad times, more
21 relevant and necessary than before. Unfortunately, I
22 do fear that many, including some within government,
23 view the courts as just another agency. That is 55
1 why forums such as today are so important and I
2 appreciate the ABA's efforts to spotlight the
3 critical role that our state courts play in our
4 society and why it's paramount that the courts
5 receive adequate funding.
6 I and my colleagues in other states
7 stand ready to assist in these efforts in any way
8 that you ask us to do so. Thank you again for the
9 opportunity to address you today.
10 CHAIRMAN OLSON: Thank you, Chief
11 Justice Rogers.
12 JUSTICE SAUFLEY: Thank you. Good
13 afternoon. I want to thank Dean Broderick and the
14 University of New Hampshire School of Law for hosting
15 this important event. I also want to thank you, the
16 ABA, for having the energy and foresight to address
17 the long-term effects on access to justice caused by
18 these unprecedented budget restrictions on judicial
19 branches throughout the country.
20 You asked whether this is a crisis of
21 the courts or of the justice system. I want to
22 suggest to you that this is a crisis of democracy.
23 I recently spent some time with a 56
1 judge from Guatemala who was here to see how we did
2 it and was astounded to find all of the cuts and
3 all of the difficulties that we're suffering in
4 the United States, whereas you've indicated earlier,
5 our system of justice has been the envy of the world.
6 He suggested, in what I thought was a
7 fairly eloquent phrase, that the surest way for a
8 democracy to commit suicide is to forget that an
9 independent justice system is at the very core of
10 the government's operations. We are not -- as
11 Chief Justice Chase has just said, we are not a --
12 a discretionary agency; we are a core function of
13 government and we have to be funded.
14 I say that in the context of a state
15 which for several decades has been funded at the
16 lowest per capita levels of any court system in the
17 nation. Adding to these difficulties, we haven't
18 escaped the economic disaster that's befallen most of
19 our government in recent years. The resulting budget
20 cuts hitting a judicial branch that has been
21 chronically underfunded have created additional
22 impediments to our capacity to provide timely access
23 for justice to all of the public. 57
1 Even before the crisis of the last
2 several years, the Maine public has historically done
3 without many of the core components of a court
4 system; for example, basic safety. In Maine
5 courthouses, we've been very slow to institute entry
6 screening. At this point, after ten years of
7 efforts, we are entry screening in our courthouses
8 less than 20 percent of our court days. There are
9 far too many days when anyone with a dangerous weapon
10 can walk straight into a courtroom in the state of
11 Maine.
12 There are only 39 courthouses for a
13 geographic expanse of 35 million square miles and
14 only 53 trial judges for a population of 1.3 million
15 people. Maine's judicial branch has no electronic
16 filing capacity, court schedules are not available
17 online, and there is insufficient staff to provide
18 central help lines.
19 In contrast to many states, Maine does
20 not have sufficient clerks to work in the courtrooms
21 with our judges. In far too many courtrooms, the
22 judge is alone on the bench having to deal with
23 recording equipment by him or herself or even with 58
1 the assistance of distracted court security.
2 Several years ago we were forced to lay
3 off one-third of our court reporter staff, leaving
4 only ten court reporters for the entire state before
5 we were able to create a quality system of electronic
6 court recording, and the Maine judicial branch has
7 very few administrators. For example, scheduling of
8 trial judges in the state is done by the trial court
9 chiefs with paper and pencil. If the notebook gets
10 lost, we have no idea what we're doing.
11 We've also had to eliminate all but
12 the most critical of books for our judges and to rely
13 entirely on online research. To the, I hate to say
14 it, youngsters at the law school, that does not sound
15 painful, but for a multigenerational group of judges,
16 losing books has been a very difficult transition.
17 So it's against that backdrop that the
18 economic disasters of the last several years has
19 taken an additional toll in the state of Maine. To
20 respond to across-the-board budget cuts, the Maine
21 judicial branch has had to leave between 35 and 45
22 of its 493 total general fund positions vacant. That
23 493 includes security, judges, clerks, the works. 59
1 The rolling freeze has meant even fewer staff to
2 respond to continuing flow of new cases and the
3 results have been very troubling.
4 In several areas of the state,
5 courthouses are dark for prearranged hours each week.
6 We have instituted a system of administrative weeks,
7 now three a year, during which we don't schedule any
8 ordinary dockets across the state, just to give the
9 clerks' offices an opportunity to catch up with the
10 flood of paper. We established these administrative
11 weeks well in advance and, for example, the
12 administrative weeks for 2012 are already set so we
13 don't disrupt the public, we don't cancel dockets,
14 and they have proved to be highly effective in
15 assisting in the paperwork backlogs. Unfortunately,
16 that takes three weeks out of the year that
17 eliminates time to get the actual trials done.
18 The supreme judicial court has also
19 established guidelines to assure that the highest
20 priority case types are reached as quickly as
21 possible. The priorities, not surprisingly, include
22 any matters of personal violence, criminal cases,
23 child protection cases, and family matters in which 60
1 child-related disputes are present. Unfortunately,
2 the result of setting these priorities has been
3 substantial delays in civil nonfamily matters. This,
4 of course, creates delays for the business community,
5 landlords, and small businesses at a time when the
6 Maine economy can ill afford it.
7 Our county law libraries found their
8 funding and access to electronic research cut with
9 the ultimate result that only two county libraries
10 survived with any meaningful presence today.
11 Judicial education's been cut to the
12 bone. Our ability to bring the clerks together to
13 train them on new laws, new forums, and new methods
14 of calculating interest has been dramatically
15 reduced.
16 These basic responsibilities often
17 result in increased strain in the clerks' offices
18 with inevitable errors and omissions that make things
19 even more difficult for the public.
20 All of our substantial trial dockets,
21 even difficult family matters, are handled through
22 the hated-by-the-Bar trailing docket system, causing
23 the inevitable uncertainty and further difficulties 61
1 for the public. In some regions, parties have to
2 return to our courthouses six or seven times before
3 their matter is reached.
4 The technological promises of improved
5 efficiency have remained out of our reach because of
6 lack of resources and the ensuing mobius loop of new
7 cases, fewer resources, and fewer tools to address
8 the unremitting caseload has taken its toll.
9 One of the oddest but increasingly
10 alarming problems we have is the issue of records
11 storage. Since all records are still on paper and we
12 don't have resources for appropriate storage
13 facilities, the boxes and boxes of files and files
14 pile up in the clerks' offices, in hallways, in
15 chambers, overflowing the storage rooms, creating
16 fire hazards and serious traffic difficulties in our
17 courtrooms.
18 The mortgage foreclosure crisis has
19 added to the strain with foreclosure filings more
20 than doubling in the last four years. Unfortunately,
21 we're now learning that court delays in our
22 landlord-tenant cases have affected a number of our
23 small businesses and citizens whose income has been 62
1 augmented by ownership of small apartment buildings.
2 Resulting foreclosures now are adding to the economic
3 misery in Maine.
4 Maine trial judges, always
5 among the lowest paid in the country, although the
6 best-looking, I would like to have on the record,
7 have -- we have now officially dropped to the very
8 least paid, according -- accounting for the cost of
9 living, which may also mean we are absolutely at the
10 top of the best-looking judges around.
11 Overall the strain on the system's
12 taking its toll, delays in the resolution of cases
13 are substantial, judgments and writs are delayed,
14 paper gets lost, safety is compromised, the
15 inevitable oversights and mistakes that occur in a
16 strained system have even affected liberty interests.
17 There is, however, in Maine, a bright
18 spot on the horizon. In this legislative session,
19 notwithstanding the continually challenging economic
20 circumstances of the state, Governor LePage presented
21 a budget that allows the judicial branch to fill
22 critical vacancies and to replace one of our most
23 dangerous courthouses. In addition, a study will 63
1 occur this month -- this summer to determine the
2 cost and time necessary to bring electronic filing to
3 Maine's courts. I am pleased to report that with
4 bipartisan support, the Governor's budget has been
5 tentatively approved by the appropriations committee.
6 If the budget passes as proposed, we will be able to
7 eliminate dark hours in the clerks' offices, slightly
8 improve entry screening capacity, and to begin to
9 address the serious backlogs in civil, business and
10 landlord-tenant cases.
11 I've been gratified to work with both
12 of the other branches of government and to hear them
13 now reflecting back to us the critical importance of
14 justice, not just for the economic health for the
15 state of Maine, but also for democracy itself. The
16 Governor and I met immediately after his inauguration
17 and we've been talking regularly since then.
18 Legislators have accepted our invitations to visit
19 busy courthouses to watch the proceedings and to
20 meet with judges. They invited me to speak to the
21 committee on -- the court's jurisdiction and they
22 followed up with questions and suggestions.
23 The Maine Supreme Judicial Court sits 64
1 every fall in local high schools to hear oral
2 argument allowing thousands of students and parents
3 to see an appellate court at work, all at the
4 invitation of the local legislators.
5 Lawyer legislators have been very
6 effective and have articulated the public's right
7 to a working court system and explained the actual
8 results of chronic underfunding. While there is no
9 panacea, effective communication among the branches
10 of government has been critical in Maine and I am
11 optimistic that the efforts underway really do
12 represent a renewed understanding of the critical
13 nature of justice in our society.
14 Thank you very much for this
15 opportunity. I'm happy to answer questions.
16 CHAIRMAN OLSON: Thank you. Thank you.
17 I've read some of your testimony about what's
18 happening and it's really very tragic.
19 Chief Justice Mulligan.
20 JUSTICE MULLIGAN: I'm Bob Mulligan,
21 CJM of the Mass Trial Court. I'm here for
22 Chief Justice Roderick Ireland, who sends his
23 regrets. 65
1 First I'd also like to thank you,
2 Mr. Olson, and Ms. Olson and Attorney David Boies for
3 your enormous investment of time and effort in this
4 important issue for all of us.
5 I'd like to speak briefly about
6 Massachusetts, our funding, our response to lack of
7 funding, and what we see as a result of our response
8 and, frankly, some very elementary solutions which I
9 think would be important to us.
10 I've filed written testimony. I'm not
11 going to read it, but I may refer to the charts on
12 page 15, 16 and 17.
13 First of all, the Massachusetts Court
14 System has 379 judges in the trial court. We operate
15 at 103 courthouses across the state. We have reached
16 more than 40,000 people, excluding employees and
17 jurors, visiting our courthouses each day. Last
18 year, for example, we issued -- judges issued 38,000
19 restraining orders, close to 243,000 civil cases --
20 250,000 civil cases.
21 We started fiscal year '09, FY09, at
22 $605 million, and that was our appropriation. That
23 appropriation for FY10 was $559 million. I think 66
1 this is on page 15. Our appropriation this fiscal
2 year is $544 million. The fiscal year ends on
3 June 30th. And today we're in the budget process
4 for FY12. The numbers in play from the House and
5 Senate, the house number 520.5, the Senate number is
6 519.7 -- 519.8. Excuse me. So there's only $700,000
7 in play right now for us when it goes to conference.
8 Those figures will represent from 605 in FY09 to 520
9 the next fiscal year, FY12, a $85 million or 14
10 percent reduction in our funding.
11 What has been the response of the trial
12 court to that reduction of funding, you've heard a
13 lot of things that have been done in other states.
14 We've done the same things. We've had an absolute
15 hiring freeze since October of '08, very limited
16 hiring before that, for the year before that. But
17 since October of '08, regardless of who has retired
18 from our system, he or she has not been replaced.
19 Not one person has been hired in the organization.
20 We've promoted limited within the organization to
21 fill positions of leadership.
22 The judges, the clerks, and the
23 managers all took five days -- they worked five days 67
1 without pay the last fiscal year. We closed the
2 courthouses. We've probably put everything in place
3 other than -- other than involuntary laying off any
4 person. It's been a personal goal of mine and a goal
5 of the other trial court chiefs that we not lay off
6 people, not even to lay off in one area, say, in an
7 area where they may be less core to hiring another in
8 another area.
9 So the result of this hiring freeze and
10 some retirement incentives we put in place, you'll
11 see on page 16 we have a decrease of 1,091 employees
12 from July 1st, '07 to last Wednesday. So a thousand
13 people, that's 14.3 percent. Since the hiring
14 freeze, I think it's about 1,025. Of the 1,091
15 people, 220 of them are court officers, 220 of them
16 are our security force, who provide front door
17 security, we do have front door security at all of
18 our courthouses, and who provide security in the
19 courtroom.
20 So, obviously, we can tell stories
21 about the -- anecdotes and stories about the effect
22 of this reduction in personnel.
23 One of the things we're very proud of, 68
1 we did very good work, we established a green team,
2 and we have lowered our energy costs from 20 million
3 a year in FY09 to less than 15 million a year through
4 reinstituting contracts and other environmental
5 initiatives. The green team has won three awards
6 from the EPA. Various other costs, I'm not going to
7 go through all of them.
8 So what do we see as an impact from
9 this reduction in personnel? We use the court tools
10 from the -- we're advocates of court tools.
11 Mary McQueen will be happy to hear that.
12 The measuring system proposed by the
13 National Center for State Courts, if you look on page
14 17 of the -- my testimony, you'll see the bar graphs
15 on the bottom showing that our time to disposition
16 has remained flat. Our clearance rate is now below a
17 hundred percent, was 116 percent in 2006, 101 percent
18 in 2007. It's now 96.9 percent. We can't keep up
19 with the cases which are coming into the system. And
20 unlike New York, our foreclosures have driven our
21 increases, but basically our numbers are fairly
22 static; they haven't increased that much in the last
23 couple of years. 69
1 The age of pending cases is increasing
2 dramatically, as you can see in the blue bar graph.
3 In 2007 we had 73,500 cases that were waiting in our
4 inventory, cases beyond time standards, and last year
5 we had 92,000. So we can directly show empirical
6 numbers, the effect of this reduction of 1,000 people
7 is having on our ability to retirement.
8 I'm almost embarrassed to say this,
9 but -- you talk about solutions and I'm almost
10 embarrassed to say this, it seems so paltry, but
11 things are things I could do as CJM in Massachusetts.
12 First of all, an appropriate without
13 line items and without earmarks, the appropriation of
14 which I would have full authority to use where I saw
15 fit; two, the ability to close courthouses, to close
16 courthouses without political interference, if I
17 could put it that way, and the ability to redraw
18 jurisdictional lines; and a third very simple thing,
19 and I think these exist in many states, additional
20 impact statement including the requisite funding for
21 any initiatives that are placed on the trial court or
22 the Massachusetts Judiciary.
23 Thank you very much for the opportunity 70
1 to speak on behalf of Massachusetts.
2 CHAIRMAN OLSON: Thank you, Chief
3 Justice Mulligan, and thank you in particular for the
4 ideas at the end. We are working on a resolution to
5 present to the House of Delegates of the American Bar
6 Association in August and we have -- we're preparing
7 a lengthy report which is going to incorporate many
8 of the things that we've been hearing today.
9 DEAN BRODERICK: Yes, I just had very
10 two brief questions.
11 In the last year of chief justice, I
12 sent an unscientific e-mail survey to all of the
13 lawyers in New Hampshire and I asked them to rate the
14 court system on a 1 to 10, 10 being fabulous, 1 being
15 you should go out of business. The average rating
16 among the 800 lawyers who replied was 5.5 on a
17 10-point scale and that was before the recent
18 budget cuts.
19 My question is this. I'm not actually
20 commenting on the determination of the staff or the
21 judges, because I think I know that that's pretty
22 high, how would you rate on a letter scale, A being
23 fabulous, to F being failing, the system that's on 71
1 the ground today in Connecticut, Maine, and
2 Massachusetts and how much more money or what
3 percentage increase in your budget would you need to
4 have a court system that you could be proud of on the
5 ground?
6 JUSTICE ROGERS: Well, I want to keep
7 my job, so I'm not going to say enough, but you know,
8 I -- as you know, we've tried to be very innovative.
9 So I would say, without patting myself on the back or
10 the people that work with me, you know, we're about a
11 B right now. But what I fear is what's about to
12 happen, particularly with the limited English
13 proficiency and the lack of attorney representation.
14 So, you know, I don't want to give you
15 a dollar figure, but what I would say to you and sort
16 of following up on the solution idea, where I think
17 all the courts need money is for technology. And
18 that -- we have been successful and we do have
19 mandatory e-filing in civil matters now and that has
20 reduced the number of civil clerks that we need for
21 that function and we have been doing other things
22 like helping people who come in and, say, I don't
23 have a lawyer and I don't know where to go. During 72
1 our busiest times, we pull clerks out and have them
2 literally as greeters at the front door.
3 So any way that we can start getting
4 some funding for technology that we can then share
5 around the country, that would be a tremendous help
6 to, I think, the states.
7 DEAN BRODERICK: Chief Justice of
8 Maine, since you have lifetime tenure, could you
9 answer that question?
10 JUSTICE SAUFLEY: I would say all of
11 the courts in Maine are above average. That's my
12 story and I'm sticking to it.
13 But your question leads me to,
14 actually, reflect back a question to you.
15 One of the things that we are learning
16 when we talk to the Bar is that fewer and fewer
17 lawyers want to be involved in litigation of any
18 type. We're finding the young lawyers coming out of
19 law school are, in fairly unprecedented numbers, not
20 staying in the kinds of practice that bring them to
21 court. So when we ask lawyers, how are we doing, we
22 are asking a smaller and smaller group of people and,
23 in fact, the people we need to be asking are those 73
1 who are unrepresented who are in our courts so very
2 often and asking them that question is very
3 difficult.
4 I think we are not doing well by the
5 public right now, but I'm sticking with my
6 above-average ranking.
7 JUSTICE MULLIGAN: You know, this may
8 not sound reasonable, but I would say the courts are
9 working at a B+, frankly. I say that because the
10 people take great pride in what they do. The Type As
11 are going to work harder and harder through lunch and
12 work late; the others who may not be Type As are
13 going to work at the same level they always worked
14 at. So the people have stepped up and responded
15 tremendously.
16 I have some very difficult problems
17 with the other -- I had signed a union contract in
18 2007. I was able to get the money for FY08 for that
19 particular union, 3,800 clerical employees. I
20 couldn't pay them in '9 and '10, so then we went back
21 to the money they were making in FY'7. I got the
22 money this year to pay them part of what I owed them.
23 I'm in negotiations with our probation 74
1 officer and security officer union right now. They
2 haven't had a contract since 2006 and I don't have
3 the money to pay them, frankly; yet, as I say, these
4 people soldier on through these difficult times
5 because they -- they're committed to what they do.
6 CHAIRMAN OLSON: I think that the
7 grades reflect enormous conscientious commitments by
8 the members of the staff of -- and the judges, but if
9 you were to give a grade, and I'm not going to ask
10 you this, of what it should be -- what it is compared
11 to what it should be for our citizens if the courts
12 were properly funded, I suspect you'd give a
13 different answer. But I'm not going to put you on
14 the spot.
15 JUDGE ARCHER: I have no question. I'd
16 like to make an observation that I would ask all of
17 you who are present here to note.
18 And that is when we had our hearing in
19 Atlanta and today by these outstanding six chiefs
20 that we've heard from with the exception of a
21 question that was directly asked of Judge Lippman,
22 not one judge, not one chief, asked for any salary
23 increases for the members of their court or their 75
1 staffs. What they've asked for is an opportunity for
2 them and their staff members and fellow judges and
3 the state court trial judges that they also supervise
4 to do their job. The reality of it is that very
5 bright and talented law graduates coming right out of
6 law school will go to work for any one of them and
7 members of their court and one year later, with one
8 or two years of legal experience compared to 20 or
9 more years of legal experience that you had before,
10 they will make more money than the chiefs that you've
11 heard from today.
12 If we were someplace else in another
13 country -- and when I was president of the American
14 Bar 2003 to 2004, I will tell you I've gone to other
15 countries that -- and I've interacted with members of
16 the bench. What we've heard here today and what we
17 heard in Atlanta is really a crisis, that they can't
18 carry this weight by themselves. They need
19 everybody's assistance.
20 CHAIRMAN OLSON: Bravo.
21 And one more hand for our panel.
22 Thank you very much.
23 I'm turning this over to cochair 76
1 David Boies.
2 PANEL TWO
3 CHAIRMAN BOIES: We're now going to
4 continue and we have next two personal participants
5 in the process, Patricia Baxter and Brian Baxter, and
6 their attorney, Christopher -- and I'm going to fall
7 into my colleague Ted Olson's pattern of not being
8 sure how to pronounce your name. Is that Seufert?
9 MR. SEUFERT: Correct.
10 CHAIRMAN BOIES: Close enough.
11 MR. SEUFERT: Perfect.
12 CHAIRMAN BOIES: Mr. Seufert, do you
13 want to set the context of what we're going to hear?
14 MR. SEUFERT: Happy to.
15 I represent Shelby Baxter and her
16 parents here in a lead paint poisoning case. And
17 we have a photo, but we couldn't put it on the
18 screens. This is Shelby at the time of the poisoning
19 back in 1995, and we still haven't gotten to trial,
20 and this is Shelby now at her prom the other week.
21 The case has been in the court system
22 waiting for trial on numerous occasions. We had our
23 first hope at trial in 2004 and then, through a 77
1 series of delays and motions, we were put off and we
2 came back up on 2008. The courts were too busy. We
3 were told to come back in 2009. We did. The court
4 was too busy. We were told to come back in 2010. We
5 did. The court was too busy. So now we're told that
6 perhaps this winter, 2011, we will have a chance for
7 a trial. We're not holding a lot of hope that that
8 will happen, but we cross our fingers.
9 Each time that this case comes up for
10 trial, Shelby has to be prepared, has to get ready
11 for this event. A courtroom is not her natural
12 element. She's scared. We get her calmed down and
13 then we have to tell her, sorry, Hon, come back
14 next year. We've done that on multiple occasions.
15 Each time we come up for trial, we
16 have to prepare the witnesses, the doctors, her
17 pediatricians, her teachers who tried to teach her,
18 and each time the case gets delayed, those witnesses
19 probably change, they have changed, because now we
20 have new doctors, we have new teachers every year.
21 So that's the -- the human side of the
22 budget crisis and the delays and I think that
23 Brian might have a little bit of input on that, if 78
1 you would.
2 MR. BAXTER: Sure. Thank you. Good
3 afternoon, everybody.
4 Part of me is a person that loves and
5 is very proud to live in New Hampshire, very proud to
6 be a dad of a young lady that's just my pride and
7 joy. I've grown up working for the last 20 to 25,
8 30 years thinking some things always happen in
9 New Hampshire. Some of the things are work hard, you
10 go forward; be a role model for your kids, maybe
11 it'll rub off, one day they'll have to make their
12 decisions, but also as a dad to protect them at all
13 costs, which Patti and I have always strove to do
14 with both of our children.
15 We didn't ask for this to happen for
16 our child at one year old and over the years I
17 said, okay, it was delayed and all -- delayed and
18 readjusted because the court systems have a lot on
19 their plate. I totally understand that. So the
20 first time you take it on the chin, okay; and then
21 the second time you take it on the chin.
22 I always grew up knowing that you're
23 supposed to have a swift -- swift trial. And I know 79
1 that courts are overworked, but we're prosecuting
2 hundreds and hundreds if not thousands of criminal
3 case that make it into the system each year in
4 New Hampshire, for example, for burglary and it's
5 because someone stole from someone's home. Well, as
6 an homeowner, as a dad, it's important -- I don't
7 want them to take my valuables, but maybe they took
8 a valuable from my daughter.
9 So it's as important not five years,
10 then it was six years, almost ten years later, now
11 we're past ten years trying to get into court. My
12 daughter's far more valuable than any possession I
13 have in my home, but a homeowner's stuff is making
14 into the court in the criminal trials. DUI -- and I
15 see it. I've been in law enforcement going on almost
16 20 years. I understand that and I'm proud of that
17 fact, but I think the fairness -- it feels very
18 unfair as a dad, and I'm just wondering when my
19 daughter gets her day in court because she's gone
20 from the one-year-old that was affected to my baby
21 that was at the senior prom. But how has this
22 affected her? And I want the courts to be able to
23 decide that through research and trial and all -- 80
1 everything that's put into it. She deserves her day
2 in court.
3 Thank you.
4 CHAIRMAN BOIES: Thank you.
5 Mrs. Baxter, do you have anything to
6 add to that?
7 MRS. BAXTER: These two are definitely
8 the talkers of the bunch. I agree with everything
9 that they've said.
10 CHAIRMAN BOIES: I have one question
11 before I start the panel discussion.
12 I was on a radio program today and I
13 actually was asked for an example of delay and I
14 referenced a case that started in 1993, a commercial
15 case that was still not at trial. And the moderator
16 asked me a question that I want to ask you, which is
17 what part of this delay is due to the courts just not
18 having the resources and what part of the delay, if
19 any, is due to sort of litigation tactics with
20 perhaps the defendant wanting to delay the ultimate
21 resolution?
22 MR. SEUFERT: I would say that
23 two-thirds of it is due to the inability of the 81
1 courts to get to this case. I don't blame any delay
2 on the defendants. They file motions and the court
3 has to hear them, but then when the court doesn't
4 have time to hear those motions ...
5 There was one time in this case that
6 we traveled throughout the state because they had it
7 assigned to one judge to hear the motion. And one
8 day he's sitting in Nashua, we drive down to Nashua,
9 an hour and a half away. The next day, he's up in
10 Laconia; we drive an hour north. The next -- I mean,
11 you do what you've got to do, but we still have not
12 gotten a trial.
13 CHAIRMAN BOIES: Yes?
14 MR. TOBER: Just a quick one. Chris,
15 or the Baxters, by the way, thank you for coming here
16 and sharing your story. I'm curious and I don't
17 want to make this too regional, but have you had
18 interaction with your legislators? Have you spoken
19 to people in the legislature in that process about
20 this issue?
21 MR. SEUFERT: I have, numerous
22 occasions.
23 MR. TOBER: And -- 82
1 MR. SEUFERT: There's bigger crises
2 that they're dealing with than the court system.
3 MR. TOBER: Thank you.
4 CHAIRMAN BOIES: Other questions from
5 the panel?
6 MS. JONES: Thank you for coming in.
7 Have you had to substitute the names of
8 your -- the representatives of the defendant?
9 MR. SEUFERT: No. No, fortunately, the
10 defendant is still alive and still around.
11 MS. JONES: And any possibility of
12 settlement negotiations?
13 MR. SEUFERT: The trouble with that is
14 that because of the delay, the continuous gearing up
15 the numerous experts, it's almost gotten to the point
16 that it's impossible, financially, to settle.
17 CHAIRMAN BOIES: Yeah.
18 MR. SEUFERT: There's too much invested
19 over ten years.
20 CHAIRMAN BOIES: I think just as a
21 comment, I think one of the underappreciated
22 consequences of delay is how much more difficult it
23 makes it to settle cases. The vast majority of cases 83
1 ideally would be settled, but I think we've all had
2 the experience that the longer a case goes on, the
3 more that gets invested and the more emotionally gets
4 invested in the case, the harder it is to ultimately
5 settle that case. It's like one of the -- one of the
6 tragedies of this kind of delay is that not only does
7 it delay ultimate justice, but it makes it necessary
8 that that ultimate justice actually come from a full
9 trial.
10 MR. SEUFERT: The defendant's lawyer
11 mentioned to me a month ago that he calculated that
12 if a verdict is entered, it will almost be double by
13 just the prejudgment interest because of the delay in
14 this case. Almost doubled.
15 CHAIRMAN BOIES: Other questions from
16 the panel?
17 Thank you very much.
18 MR. SEUFERT: Thank you.
19 MR. BAXTER: Could I just -- one part
20 on it.
21 My daughter's a wonderful young lady.
22 I just love her to pieces. And every time this comes
23 up over the years and get her prepared, like Chris 84
1 said, she had to say, oh, I was poisoned, and am I
2 different, how was I affected. You know, as a dad, I
3 just want her to go off the platform between 16, 17
4 and 18 and start making these life decisions and, you
5 know what, she's questioning, how have I been
6 affected. I just want to put closure to it and I
7 want her to enjoy life to her fullest.
8 CHAIRMAN BOIES: Well, thank you very
9 much and you have our sympathy.
10 MR. BAXTER: Thank you.
11 CHAIRMAN BOIES: Our next panel
12 consists of two additional participants in the
13 process and their attorney, Wayne Haggie,
14 Kristy Haggie, and her -- Kirk, do you want to
15 provide a little context?
16 MR. SIMONEAU: Absolutely. First, I
17 want to thank you all for having me here. Frankly,
18 compared to every attorney in the room, I've been
19 practicing law like for 20 minutes.
20 But I want to start by saying this: We
21 are billed as the human interest story. Human
22 interest story, we are not. These are the facts.
23 Human interest stories are meant to be emotional and 85
1 tug at your heart and maybe this story will, maybe it
2 won't, but these are the facts. The story you're
3 about to hear is what happens when a coequal branch
4 of the government is disrespected by another branch
5 of the government.
6 Now, in giving context, I'm going
7 to briefly tell you how I got to sit in this seat.
8 January 16th, 2003, at about eight
9 o'clock in the evening, I watched a hit-and-run
10 drunk driver kill my dad. We were in Florida, I was
11 reaching out to shake his hand, and a car came and
12 killed him. As that unfolded, I met a lot of you. I
13 met a lot of lawyers. And the truth is I didn't like
14 many of you. And both my mother and father,
15 they're -- both my mother and father are deaf and
16 that created an enormous number of additional
17 challenges in dealing with the court system. In
18 dealing with the court system and dealing with
19 lawyers who, quite frankly, treated my parents as if
20 they were hearing people.
21 And, anyway, a long story short, I
22 decided to go to law school because I wanted to do it
23 differently. I wanted to fulfill the promise that 86
1 Justice Broderick, Dean Broderick, talked about at
2 the outset. I wanted to fulfill that promise for
3 people, people like Wayne and Kristy Haggie, who came
4 to my office because of a deaf organization that
5 called me and said, we've got this nice young couple,
6 she's -- she's deaf, he's hearing, and they need
7 help. Okay. I'll give it a try.
8 And so it's a custody battle. Kristy's
9 parents have issues with Kristy's deafness and with
10 Mr. Haggie's religion, so they filed some motions and
11 petitions and things to get custody of two young
12 children who are now five and four. And we had
13 hearings, and that's all well and good.
14 And pending the court's final order, in
15 June of last year, I filed a motion for visitation.
16 On June 15th, 2010, I filed a motion for visitation
17 pending the court's final order in which we asked,
18 please, Court, let Mr. and Mrs. Haggie see their
19 kids, let them have overnight visits, let's start
20 toward reunification. I want to be clear; the Court
21 said, reunification is our goal here, we want to
22 achieve this.
23 So on June 27th, 2010, two weeks later, 87
1 the court issued an order granting exactly what we
2 asked for, verbatim. The problem, however, is we
3 didn't receive that order until September.
4 I called the court. I said, hey, any
5 response to that motion we filed? Nothing yet.
6 Called later, nothing yet. And then one of my
7 partners, Larry Vogelman, and some other senior
8 attorneys said, you know what we're going to do,
9 we're going to sue the State of New Hampshire. We're
10 going to say the -- the court is a coequal branch.
11 We're going to say that they're entitled to the
12 budget that they asked for and, God dammit, our
13 clients are entitled to justice.
14 So they filed that lawsuit, and we were
15 in the newspaper. And guess what happened the next
16 day? I got a phone call from that very court. The
17 order had been granted months ago. It was sitting in
18 a pile. It was overlooked somehow.
19 Now, I don't blame any person. There's
20 a lot of paper and not a lot of staff.
21 Unfortunately, by then it was too late. And what's
22 ironic about this as we sit here now on April 5th of
23 this year, so just two months ago, I filed a motion 88
1 entitled Verified Natural Parents' -- and here's the
2 keyword, Urgent Motion for Visitation, because the
3 visits aren't happening. Urgent. We've heard
4 nothing from the court.
5 But I think it's very important --
6 because I want this to be about facts. I don't want
7 this to be about human interest. I think it's very
8 important that Mr. Haggie communicate to you what
9 exactly it's like for a parent who, by the way, is in
10 New Hampshire. Our cases say that being a parent is
11 a fundamental right. It's akin to your right of
12 speech and freedom of religion.
13 Wayne, can you communicate to these
14 folks what it's like to hear from a judge on a bench
15 in June that he's going to issue an order granting
16 you visitation and not get it until September? What
17 happens during that time frame?
18 MR. HAGGIE: Hello.
19 What happens through that whole time is
20 we lost time with our children. At the time, they
21 were two and --
22 MR. SIMONEAU: Three.
23 MR. HAGGIE: -- three -- 89
1 MR. SIMONEAU: Yeah, two and three.
2 MR. HAGGIE: -- at that time.
3 When the judge -- when we went to
4 court, the judge said, you know, we're going to
5 reunify you with your children, you know, this is
6 what's going to happen. And all that time that went
7 by when nothing happened, nothing happened, I felt
8 disappointed. I felt let down because me and my wife
9 we went out, we spent money to get clothing, diapers,
10 everything we needed to make sure that in case of
11 anybody had any issues, any questions about our
12 parenting skills, we were set. We had everything.
13 We went out we got counseling. We did everything we
14 were supposed to do. And as I sit here in front of
15 you guys, I feel literally let down by the courts
16 because me and my wife have now -- and I'm sure most
17 of you have children, grandchildren, we missed our
18 first steps with our daughter, who is now four years
19 old. We didn't get to see them. We heard about them
20 through an e-mail from her family.
21 We didn't get to potty-train our
22 children. We heard about it through word-of-mouth
23 from her family. You know, and I -- as I sit here 90
1 as a father, I have five other children that I have
2 raised to the best of my ability, but for some odd
3 reason, just because I chose the Mormon religion, my
4 in-laws feel with my wife being deaf and my son
5 having a disabled -- developmentally delayed
6 disability that my wife is not capable of raising her
7 own son.
8 It's -- it's sad, because my daughter,
9 we found out through one of the slight communications
10 we had with our daughter, she is in ballet. We have
11 missed numerous recitals because we've never been
12 invited to them.
13 My son has been in school plays. We
14 missed those because we never been invited. Doctor's
15 appointments, we've heard nothing, because all this
16 stuff is sitting in court waiting to be -- waiting to
17 be heard. And two years now we've been sitting here
18 and we've been getting told by guardian ad litems, by
19 our lawyer, by everybody, be patient. And I'm
20 telling you, patience is a virtue. Because I'm not a
21 very patient man. I'm really not. And you can ask
22 anybody who knows me. I am a very outspoken
23 individual. 91
1 MR. SIMONEAU: Four minutes and no
2 profanity.
3 MR. HAGGIE: So, but, you know, in all
4 honesty, you know, when we -- we get to see our kids
5 two days a week, four hours a day, and one of those
6 days is a court-ordered day; the other one, the
7 in-laws decided to be nice because -- I don't know
8 why. We get them eight hours a week. That's it.
9 What kind of bonding can we have with that.
10 MR. SIMONEAU: And those visits aren't
11 regular, which is one of the reasons why we're trying
12 to get back into a hearing.
13 And I don't want to embarrass you,
14 Wayne, but when you say you spent money back in June,
15 you spent about how much money?
16 MR. HAGGIE: We spent over $500.
17 MR. SIMONEAU: And do you have an extra
18 $500.
19 MR. HAGGIE: No, we don't. We --
20 actually, some of that money I borrowed from my
21 mother because my mother hasn't seen her
22 grandchildren. And that's the whole reason why we
23 moved from California to here was so both sides of 92
1 the family could see the grandchildren.
2 MR. SIMONEAU: And the kids outgrew
3 everything?
4 MR. HAGGIE: Yeah. All the clothes we
5 have, yeah, they don't even fit in them anymore. We
6 have $500 worth of clothes sitting there, waiting,
7 and we can't even use them now, so we're going to,
8 you know, donate them.
9 MR. SIMONEAU: (Speaking to Mrs.
10 Haggie) Do you want to say anything?
11 The last picture she has of her
12 daughter, Bethany, was when she was three. Bethany
13 often doesn't go on the court-ordered visits because
14 the in-laws don't wasn't to subject her to it. So
15 it's a picture taken at Chuck E. Cheese.
16 Andrew, her five-year-old, she has a
17 picture here today. They have good visits.
18 And I think -- and, obviously, if
19 there's questions, I think it's appropriate -- I've
20 taken up enough of your time, but I -- I -- where's
21 the call to action here? Okay? I've heard a lot of
22 problems. Where's the call to action? Where are the
23 protest signs? Where are the other lawyers brave 93
1 enough to file the lawsuits against the states and
2 say, let's get this right. That's my question to all
3 of you who are supposed to be the leaders. It's good
4 enough to talk. We need action.
5 And with that, as a young lawyer, I
6 turn it over to your questions, sir, and ma'am.
7 MS. MCQUEEN: Thank you for coming
8 today. Were you here for the other witness
9 testimony?
10 MR. SIMONEAU: Yes.
11 MS. MCQUEEN: Because I guess I would
12 like to ask you -- I mean, one of the assignments
13 that the commission has been given, and one of the
14 reasons that we're holding these public hearings, is
15 to determine what calls to action are appropriate and
16 what can be taken.
17 And so while I hear on one side that
18 you're saying, okay, if all of these cost reductions
19 and all of these court closings and all of these
20 financial or incremental approaches haven't worked,
21 are lawsuits and public demonstrations the best way
22 to bring the case? Because from your perspective, if
23 the courts didn't have the -- I mean, you know, I -- 94
1 is this a responsibility of government or is it a
2 responsibility for individuals and the courts? I'm
3 trying -- I guess I'm asking the question back to
4 you.
5 MR. SIMONEAU: Right. Well, as I
6 understand it, I mean -- it's going to sound trite,
7 but it's true. We're a government of the people by
8 the people and for the people, so aren't we, the
9 people, supposed to do something? And I -- I
10 absolutely -- I was dumbfounded when our lawsuit got
11 bounced. I was dumbfounded.
12 As I understand it, the court system,
13 in New Hampshire at least, is a coequal branch of the
14 government. So why another branch is telling it what
15 to do and how to do it, I don't understand that.
16 The chief justice from Massachusetts
17 made an excellent point saying, give me my money and
18 don't tell me what to do because I know what to do.
19 I was at an awards dinner where
20 Dean Broderick was given a Kenison award and he made
21 a point of saying, you know, I see an awful lot of
22 people picketing the Statehouse; how come I don't see
23 lawyers. Are we too good to hold picket signs? I 95
1 don't know. But something needs to change. And,
2 sadly, the change isn't going to happen 'til those
3 very people who are forcing all those cuts find
4 themselves with a big fight on their hands and only
5 one place to resolve it, and that be the courts.
6 And, sadly, they're going to get to the front of the
7 line. Maybe some of us who control the queue need to
8 tell them to get back at the end of it and let them
9 see what it's like to be everybody else.
10 MR. WEISENBERG: Mr. Simoneau, just one
11 question for you.
12 What you're basically saying to us --
13 and thank you for being here. What you're really
14 saying to us is that the lack of resources, the lack
15 of funds, is the cause which has had this case
16 prolonged for this length of time. Is that a correct
17 statement?
18 MR. SIMONEAU: Absolutely, sir.
19 MR. WEISENBERG: Okay. Thank you, sir.
20 CHAIRMAN BOIES: The delay from June
21 'til September is just extraordinary and I can't -- I
22 can't imagine an excuse for that.
23 When was your lawsuit filed? 96
1 MR. SIMONEAU: The petition was brought
2 by Mr. and Mrs. Haggie -- by the in-laws on June 9th,
3 2009. So it was actually a petition where they were
4 petitioning the court so that the grandparents would
5 have custody of the children. That was brought on
6 June 9th, 2009.
7 CHAIRMAN BOIES: And going from
8 June of 2009 until June of 2010, did things proceed
9 relatively expeditiously or were there delays as
10 well?
11 MR. SIMONEAU: There were delays there
12 as well. Those delays, however, are slightly less
13 infuriating for a couple of reasons, the chief being
14 Mrs. Haggie is deaf and the court needs to be able to
15 provide an interpreter. And I say slightly less
16 infuriating because I'll note to the folks here
17 today that everyone in charge of this event knew
18 Mrs. Haggie was going to be here and knew Mrs. Haggie
19 was deaf and no one made arrangements for an
20 interpreter, presuming we would take care of that.
21 There's an education process involved in representing
22 deaf people.
23 So I don't fault the budget issues or 97
1 anything else with that. I fault sort of a general
2 ignorance with any delay that happened in that time
3 frame.
4 MR. TOBER: Kirk, I think you should
5 put into perspective -- maybe it's self-evident,
6 maybe it's not -- that this is not an isolated event.
7 Would you agree with that, that, in
8 fact -- and I'm assuming you're dealing with a
9 marital master?
10 MR. SIMONEAU: No, we have a judge.
11 MR. TOBER: You have a judge. Would
12 you like to briefly, briefly, address the magnitude
13 of this delay problem before marital masters and
14 judges in general in New Hampshire.
15 MR. SIMONEAU: The honest truth is I'm
16 not sure I'm capable of doing that. I -- I think if
17 you got a roomful of lawyers here in New Hampshire
18 and you just started to anecdotally speak about it,
19 you'd find, boy, just the stories coming out of the
20 woodwork.
21 The first trial I got to second-seat
22 was the July after I was admitted in 2009 and my
23 partner, David Slawsky, brought that lawsuit six 98
1 years previous. Now, there's lawyering involved in
2 some of those delays, but not so much.
3 And a point was made earlier by Chris,
4 an excellent point, I think, that here's the real
5 problem with this from a lot of perspectives. Even
6 before all of these delays, even before the budget
7 crisis, most cases weren't resolved in courts. They
8 weren't resolved by judges or juries. They were
9 resolved privately. That was the case for a great
10 number of years. The problem is this. If you can't
11 say to the other side with any degree of seriousness,
12 well, let's just ask the judge or let's just ask the
13 jury, in my own practice, which is predominantly
14 personal injury, some employment litigation and a
15 great deal of ADA cases representing deaf folks, the
16 other side is oftentimes a well-monied hospital,
17 insurance company, and we just wait and wait and
18 wait and wait. And I have had personally one case
19 that comes to mind that we settled for a great deal
20 less than what it was worth because we said to our
21 client, it's this dollar now or we wait for the court
22 and that's three, maybe four years from now.
23 But the magnitude is this. I guarantee 99
1 you, you talk to anyone in any practice and they will
2 tell you that there are delays. There are some
3 courts that are still running like clockwork. That's
4 not to be -- and, again, it's not an accusation of
5 the courts. I agree that people are working like
6 crazy. The problem is if you have a hundred men
7 building a building that takes, you know, really a
8 thousand men to do, it can take a long time to build
9 a building.
10 Yes, ma'am.
11 MS. JONES: Thank you very much for
12 coming in and -- you and the Haggies. We really
13 appreciate this.
14 Could you tell me, where were the
15 children prior to the June 2009 filing?
16 MR. SIMONEAU: Yes. And this is sort
17 of the basis of the custody question.
18 And correct me if I'm a little bit off
19 here.
20 Mr. Haggie was driving a truck,
21 long-haul trucking. So Mrs. Haggie, having a young
22 child and a new baby, spent a lot of time at her
23 parents' house and stayed there a lot and -- so the 100
1 kids were staying at a combination of with Grandma
2 and Grandpa and at the Haggies' own home, but always
3 with Mrs. Haggie. And it really -- Wayne I think put
4 it really well earlier; they were helping like you're
5 supposed to help and then all of a sudden, they were
6 helping themselves.
7 MS. JONES: Okay. Now, I do not know
8 New Hampshire procedure, but is there any process by
9 where you can expedite matters in custody cases?
10 MR. SIMONEAU: You file motions that
11 indicate to the court and, in fact, in this case we
12 were told that if we filed any -- last time we were
13 in front of the court, we were told whatever we
14 filed, the clerks would be on alert, that it would
15 be acted on within five days, and I've sent, you
16 know, letters to follow up, I've sent -- as a matter
17 of fact, in this particular motion we followed up
18 about a little more than a week later because we got
19 additional information, a note from a counselor. So
20 there is a -- I -- and I may -- I obviously don't
21 know everything about every trick to the trade at
22 this point and this is also not my general practice
23 area, but this is a pro bono case in which I am, you 101
1 know, doing the best I can in large part because of
2 the language barrier. There are few other lawyers
3 equipped to be able to do this because the pro bono
4 system would have to pay over a hundred dollars an
5 hour to have a interpreter to do this.
6 So I don't know. I'd be anxious if
7 anyone in the room can come and tell me, but I've
8 talk to family law practitioners at length about this
9 and asked about ways to speed things up and the only
10 thing that we did successfully to speed things up was
11 file a lawsuit, which got us on the front page of the
12 newspapers.
13 MR. KOGAN: Did you file any motion for
14 an emergency hearing because of the circumstances
15 involved here.
16 MR. SIMONEAU: We have.
17 MR. KOGAN: And --
18 MR. SIMONEAU: We filed them as urgent
19 motions.
20 MR. KOGAN: Did you hear from the
21 judge? Did you get a hearing?
22 MR. SIMONEAU: Not yet. That's the
23 motion I referred to that was filed April 5th of this 102
1 past year.
2 MR. KOGAN: You say this last year.
3 2010 or 2011?
4 MR. SIMONEAU: 2011. I think it's
5 important to understand that as part of the procedure
6 here, what happened is -- and I understand this is
7 not uncommon; the judge says -- he appoints a
8 guardian ad litem and then gives the guardian, I
9 don't even know how to describe it, but also carte
10 blanche to do whatever the guardian feels is
11 necessary, given the circumstance. So a lot of what
12 we try to do is work with the guardian and when that
13 fails, we turn to the judge.
14 But I can show you the -- I mean, the
15 pleadings file itself is a stack -- it's -- we only
16 have I think a third of it? That's the pleadings
17 there. That's just a third of our pleadings.
18 MR. KOGAN: No, I don't need to see it.
19 I was just curious to know, you know, because I know
20 when I was on the trial bench, what I would do is I
21 would get a motion for an emergency hearing and I saw
22 these facts, you would get an emergency hearing,
23 forgetting about it, and then I would decide do I 103
1 have to appoint a guardian ad litem. But this is a
2 very serious matter.
3 MR. SIMONEAU: I agree, your Honor.
4 MR. TOBER: I'm only a liaison, so I
5 can take great liberties and suffer no consequences
6 from the committee.
7 Let me add a couple observations to
8 what you've offered here today --
9 MR. SIMONEAU: Thank you.
10 MR. TOBER: -- because I think it's
11 important for the record to understand that there is
12 a systemic failure in New Hampshire.
13 Let me give you two quick examples. I
14 received an order not -- well, it was last year, but
15 it was within the last year or so that a critical
16 event, transactional event, had to occur in a
17 significant divorce case by August 10th. I received
18 that order in September. I sent that to friends in
19 the process so they can see what was happening. The
20 hearing had been in June. It had been written; the
21 opinion had been written in June, and it was
22 processed and approved and released in September
23 with an August performance date. 104
1 I had another one where -- and this
2 case is still pending, so I won't comment too much
3 about it -- where a significant marital estate,
4 hundreds of millions of dollars, was hemorrhaging
5 millions of dollars a month in the wrong way and --
6 not that you can hemorrhage in the right way -- but
7 it was hemorrhaging and we needed to staunch it and
8 we went in and had a hearing. The hearing, as I
9 recall, was July. The opinion was written in the
10 first week of August and we received it issued by the
11 clerk's office the end of September. So that -- this
12 was an emergency for which we said we need immediate
13 relief. So there was another 60 days of money being
14 spent in the improper fashion.
15 It's not a failure of good people
16 trying hard because good people are trying hard, in
17 my opinion. The clerks' offices are overburdened,
18 the judges have no resources, the marital masters,
19 who hear these divorce cases, don't have clerks to
20 assist them. They barely can write opinions. They
21 have to scribble on the end of a motion, denied,
22 granted, and two or three sentences that you have to
23 parse out for the rest of that case as the law. 105
1 So in supplement to what these poor
2 folks have gone through, I want this crowd to
3 understand that at least here in New Hampshire there
4 is a widespread systemic failure of the system,
5 despite the fact that good people are trying very
6 hard. The answer is for this task force to determine
7 how to best resolve that, but it lies beyond the
8 human effort; it lies in something called technology
9 and it lies in something called finances. That, I
10 believe, should be the focus and is the focus of what
11 this task force is all about.
12 MR. SIMONEAU: I think you also have
13 to move the court system out of the same budgetary
14 consideration process that every other department
15 goes through because, you know what, it's not a
16 department.
17 MS. JONES: Mr. Simoneau, just one
18 quick additional question.
19 I --
20 MR. SIMONEAU: Can it be an easy one?
21 Would you mind?
22 MS. JONES: No, no. It's just you are
23 intimately familiar with this case, with the opinions 106
1 that have been filed from your side and from the
2 other side.
3 MR. SIMONEAU: Yes, ma'am.
4 MS. JONES: In your judgment, how long
5 would it take to hear this case?
6 MR. SIMONEAU: To hear it?
7 MS. JONES: Uh-huh.
8 MR. SIMONEAU: To have a hearing?
9 MS. JONES: That's correct.
10 MR. SIMONEAU: I don't know. Half an
11 hour.
12 MS. JONES: Maybe a little longer if
13 you have a -- any experts of any kind?
14 MR. SIMONEAU: Yes. Well, yeah, let's
15 call it an hour, ma'am. I forgot we had a counselor
16 who, by the way, agrees with us.
17 MS. JONES: But clearly a half a day,
18 you're thinking?
19 MR. SIMONEAU: Excuse me?
20 MS. JONES: Clearly a half a day.
21 MR. SIMONEAU: Not even, ma'am. And,
22 frankly, the truth is the judge we'd be before
23 is a very good judge and he would make sure it got 107
1 through quickly.
2 MS. JONES: Thank you.
3 MR. SIMONEAU: Was that too gratuitous,
4 the last one?
5 CHAIRMAN BOIES: Typical. You're
6 learning. You're learning very fast.
7 MR. SIMONEAU: Thank you, Larry.
8 CHAIRMAN BOIES: I want to -- I want to
9 thank both of the two parents and -- for coming here.
10 I think this has been very valuable. I want to
11 express our sympathy to you for the situation and I
12 want -- want to congratulate Kirk on you learning
13 very fast and I think that your willingness to take
14 this case on is very commendable.
15 MR. SIMONEAU: Thank you, sir. From
16 you, that's very high praise.
17 CHAIRMAN BOIES: Good afternoon and
18 thank you for coming.
19 PROFESSOR TRIBE: Good afternoon.
20 Thank you very much.
21 It's a great honor for me to be
22 testifying before this task force which was launched
23 to address what we all know is a profound problem, 108
1 not only of the courts, not only of clients, but as
2 Chief Justice Saufley of Maine emphasized, of
3 democracy.
4 To tell the truth, the decision to
5 dedicate the task force to the preservation of the
6 justice system sort of bothered me from the moment I
7 first got my invitation because if we're honest with
8 ourselves, I think we have to admit that for all that
9 it does well, justice in America needs not just to be
10 preserved, but to be restored and reconstructed in
11 many instances from the ground up if the promise of
12 equal justice for all is to have any hope of being
13 redeemed. You just have to listen to some of the
14 people we've heard today to see that.
15 The witnesses we've heard today
16 emphasized how bad things are for litigants and for
17 our court system in times of economic distress, but
18 the truth is that even when the economy was doing
19 well, we faced a chronic crisis in indigent defense,
20 in providing adequate civil legal assistance to the
21 poor, and in making our legal system work well not
22 just for the wealthy and well connected, but for
23 people in the struggling middle class, most of whom 109
1 can hardly afford and barely comprehend the costly
2 and elaborate machinery that we have constructed for
3 them.
4 So I may offend a few people by being
5 this direct, but after four decades of teaching and
6 writing, I've come to realize that if you're not
7 willing to offend, you might as well try a different
8 line of work.
9 So let me just start off with one of
10 my favorite lawyer jokes. It may tell us a lot that
11 there are so many to choose from. One of my
12 favorites is a New Yorker cartoon in which a
13 well-dressed fellow is hitting on a young woman at
14 a cocktail party. Oh, yes, I am a lawyer, he says to
15 her, but not in the pejorative sense.
16 So why do so many jokes and cartoons
17 depict our vocation in such a pejorative light? Why
18 do most Americans have a view of lawyers that is
19 almost as bleak as their view of journalists and
20 congressmen?
21 John Adams, writing to his father after
22 being reproached for representing British soldiers
23 accused of murder at the Boston Massacre said he had 110
1 never harbored the expectation that all men should
2 speak well of me, but only to do his duty.
3 John Adams' modern day counterparts,
4 the lawyers who agreed to represent the Guantanamo
5 Bay detainees and, let's be frank, our cochairmen
6 today, Ted Olson and David Boies, who made the
7 courageous decision to challenge California's
8 same-sex marriage ban, make people like me proud of
9 the profession we chose, but may not do very much to
10 redeem that profession in the public's eyes.
11 We can do things like streamline and
12 consolidate judicial structures and make more and
13 smarter use of new technologies as the state chief
14 justices who testified here this morning have done,
15 we can extend FDIC insurance for funds that lawyers
16 hold in trust for their clients, the so-called IOLTA
17 accounts, as my office at the justice department did
18 last year in promoting passage of a bill to close a
19 loophole that would otherwise have jeopardized the
20 second largest source of civil legal services
21 funding.
22 We can consider more radical measures
23 like the Litigation Excise Tax on attorneys' fees or 111
1 a systemic annualized funding process of the sort
2 that Chief Judge Lippman has wisely championed in
3 New York. We can do all of those things, and we
4 should. But until we ourselves are redeemed in the
5 public's eyes, our efforts to boost the level of
6 assured funding for public defense so that we don't
7 have to go begging as though we didn't realize that
8 every dollar we spend on civil legal assistance
9 brings back five dollars. But unless we make a real
10 difference in the way we, as lawyers, are viewed in
11 this society, legal services and the court system are
12 likely to hit a pretty low ceiling in terms of what
13 they can ultimately squeeze from the system,
14 something that I learned during my rewarding but
15 frustrating time as the Obama Administration's senior
16 counselor for access to justice.
17 The reason that we are held in such low
18 esteem, although we don't like to admit it, we like
19 to think that we occupy a high place in the public's
20 view, may have something to do with the fact that
21 although the ABA Model Rule 6.1 speaks of the
22 professional responsibility of every lawyer to
23 provide legal services to those unable to pay, the 112
1 members of our profession average less than half an
2 hour a week and less than half a dollar a day in pro
3 bono contributions, only a small portion of which
4 really go to the poor.
5 But it is likely, I think, to have more
6 to do with how little of the energy of our profession
7 goes to addressing these perennial, chronic,
8 systemic, structural problems and how much of the
9 energy of lawyers is devoted to protecting their
10 professional prerogatives and their economic turf by
11 resisting the simplifications in legal rules and
12 procedures that would make protracted litigation less
13 essential, by interposing obstacle to discrete task
14 representation, to unbundle legal services, and
15 especially to services that in many instances
16 nonlawyers could safely perform as well as lawyers
17 can and sometimes better, by resisting improvements
18 in the assistance available to those going forward
19 with no legal representation at all and by opposing
20 fair and efficient forms of dispute resolution such
21 as class-based arbitration that require less intense
22 commitments of judicial resources and are more
23 user-friendly for ordinary litigants. 113
1 Now, in the spirit of the human
2 interest stories that we've just heard from
3 Shelby and Patti Baxter and from Wayne and Kristy
4 Haggie -- and I submit they are human interest
5 stories. There's no clash in my view between human
6 interest and fact. In the spirit of those stories,
7 just consider as one example the two-year contract
8 that Vincent and Liza Concepcion signed for AT&T's
9 cell phone service to receive what they were told
10 would be two free phones. AT&T instead charged them
11 $30.22 in sales tax for their phones and they sued
12 the company for fraud in federal court as part of a
13 class of people similarly duped.
14 AT&T said the contract that they had
15 signed required the Concepcions and the rest of the
16 plaintiff class to submit their claims one by one to
17 individual bilateral arbitrations, each for some $30.
18 The federal trial court, upheld by the 9th Circuit
19 U.S. Court of Appeals, struck down that clause in
20 the boilerplate contract as unconscionable under
21 the applicable California law and held that the
22 plaintiffs could proceed against the company in a
23 federal class action seeking class-based arbitration 114
1 of a sort that other cases had previously pioneered.
2 The United States Supreme Court,
3 dividing last month along dismayingly predictable
4 five to four lines, found the California law
5 preempted by the Federal Arbitration Act of 1925. As
6 Justice Breyer pointedly asked in his dissent, what
7 rational lawyer would have signed on to represent the
8 Concepcions in litigation for the possibility of fees
9 stemming from a $30.22 claim? Judge Richard Posner
10 observed in a 2004 opinion the realistic alternative
11 to a class action is not 17 million individual suits,
12 but zero individual suits. Only a lunatic or a
13 fanatic sues for $30.
14 Now, the reason I talk about this case
15 is not that I expect you to be all that sympathetic
16 with a mere $30 loss. Compared to the human losses
17 that we have seen described in the testimony this
18 morning, that may seem trivial. But a system that
19 can't even get it together efficiently to resolve
20 disputes over $30 is a system that is fundamentally
21 broken. To me, the AT&T decision painfully
22 illustrates that ordinary citizens victimized by, in
23 that particular case, corporate greed can effectively 115
1 be shut out of the halls of justice by the work of
2 lawyers. AT&T's lawyers, in the first instance,
3 doing a perfectly good job, who drafted the fine
4 print in the contract that the customers signed.
5 The justice department's lawyers, in
6 the second instance, whom I have to confess during my
7 time there, I was unable to persuade to even file
8 an amicus brief supporting the Concepcions, even
9 though there is, in my view, a clear federal interest
10 in access to justice. The lawyers in the supreme
11 court majority, fine lawyers, all, in the final
12 instance, who let technical devotion to the letter of
13 the contract and a truly cramped reading of federal
14 preemption doctrine blind them to the common sense
15 that led the four dissenting justices see that the
16 upshot was to let a well-lawyered company, to quote
17 from Justice Breyer's dissent, deliberately cheat
18 large numbers of consumers out of individually small
19 sums of money.
20 Now, this is an example in which no
21 large new appropriation was needed to make access to
22 justice a reality. What was needed was devotion,
23 dedication, energy, commitment, a willingness to see 116
1 through the superficial technicalities, a willingness
2 to recognize that access to justice should be an
3 important weight on the scales, whereas here the
4 arguments one way and the other under the preemption
5 doctrine could have gone either way.
6 Nobody thinks that the legislative fix
7 coauthored by Senators Al Franken and Richard
8 Blumenthal and Representative Frank Johnson stands
9 much of a chance on Capitol Hill. I think it's
10 regrettable that the Obama Administration that I
11 serve, despite its genuine commitment to access to
12 justice, sat on the sidelines in that case. I think
13 it's a shame that the ABA, which I commend for
14 initiating this task force but which ought to be a
15 strong and principled voice in support of access to
16 justice, sat the case out as well.
17 Now, I think it would be tempting for
18 this task force to look solely at ways of increasing
19 funding for the system of justice, of improving the
20 use of technology, of consolidating and making the
21 system more efficient administratively. It would be
22 tempting to do that, but if consumers and workers can
23 be cut off at the knees and shut out of effective 117
1 relief by the good work of lawyers, then much of what
2 the task force does will be undermined because the
3 power of persuasion, which is ultimately all this
4 task force has -- it has neither the power of the
5 purse nor the power of the sword -- the power of
6 persuasion is undercut when the profession and
7 vocation in whose name we seek to persuade does
8 not get its act together more consistently and more
9 coherently and more compellingly to advocate for
10 access to justice in so many ways.
11 I think when lawyers and the legal
12 profession are seen as less than friendly to the
13 cause of justice, then the efforts of a task force
14 like this will ultimately be undercut.
15 So if there is one thought I want to
16 leave with you today, and I've been deliberately
17 brief, I know people are hungry. I hope to have some
18 dialogue with the panel, but if there's one thought I
19 want to leave -- leave with you today, it's that we
20 need to work harder and do more to overcome the basis
21 for all of those nasty lawyers jokes if we are ever
22 to close the justice gap in America. I think our
23 country's greatness demands nothing less. 118
1 And I want to thank you for the
2 opportunity to address you today. Thank you very
3 much.
4 CHAIRMAN BOIES: Thank you for coming
5 and thank you for your literally decades -- neither
6 one of us wants to remember exactly how many
7 decades --
8 PROFESSOR TRIBE: Don't remind me.
9 It's been too many decades.
10 CHAIRMAN BOIES: -- your decades of
11 service to this profession. As usual, you've given
12 us a lot to think about.
13 What would you say would be the two,
14 three or four concrete things that you would
15 recommend that you think would improve things?
16 PROFESSOR TRIBE: Well, I think you
17 would certainly take some important leaves from the
18 more concrete and precise testimony you've heard
19 today, from the best things that have been done in
20 Maine, in Connecticut, in Massachusetts, in Vermont
21 and the other states represented here, I think what
22 you would do is hold them up as models that other
23 states, too, should be looking for ways not to make 119
1 access to justice a pay-as-you-go affair, as
2 Judge Lippman put it, ways of regularizing and
3 systematizing in the budget process access to
4 justice. I think that's one thing.
5 I think a second thing that you might
6 do is recommend that information be pulled together
7 to remind people that these are not expenditures,
8 they are investments; that the money that we spend on
9 making court delays less dramatic and devastating,
10 the money that we spend on making it possible for
11 people to go to court, that that money is returned
12 multifold and that just as the money we spend on
13 public education ought not to be sort of compared
14 with -- with the current consumer outlay, this ought
15 to be institutionalized as something that is
16 critical to the infrastructure of America and the
17 infrastructure of democracy.
18 I think the third thing that ought to
19 be stressed is that expenditures on technology, in
20 particular, are vital. That is, unless we take
21 advantage through e-filings, through the use of
22 videoconferencing, through the other technologies
23 that are now available to us and that weren't 120
1 available before, we will have no way to exert a
2 magnifier effect, the multiplier effect, on the
3 increasingly scarce dollars that are dedicated to the
4 system.
5 I could go on, but I haven't really
6 tried to encapsulate all of the fine testimony you've
7 heard earlier and I will submit something in writing,
8 but I -- I think that those are among the things that
9 could be recommended.
10 CHAIRMAN BOIES: Thank you.
11 MR. WEISENBERG: Professor Tribe, this
12 morning and for the last few hours, we've heard a
13 recurring theme, the phrase "access to justice." I
14 think everyone who has spoken to us today has used
15 that. Is it your sense that the problem we face
16 and what we need to address is the public's lack of
17 confidence in accessing our system of justice in this
18 country today?
19 PROFESSOR TRIBE: Well, a lack of
20 confidence based on the reality that justice is,
21 indeed, very inaccessible. That is, when I went
22 around the country, visited all kinds of places that
23 were trying hard to make justice more accessible, 121
1 occasionally I was inspired by what a particularly
2 farsighted judge was doing in, for example, making
3 mediation more readily available in avoidable
4 foreclosure situations. But on the whole, I was, to
5 be really honest, a little bit more depressed than
6 inspired because throughout the country, there were
7 people who had simply opted out of going to court
8 because they knew the delays would be so long, it
9 would be impossible.
10 When I looked at data that said that
11 something like 80 percent of the nation's justice
12 needs are unmet, I wondered how in the world is that
13 compiled. It's even more difficult than the
14 unemployment figures when people drop out of the
15 labor market. There are so many people who accept
16 their lot, who accept that there's nothing that the
17 legal system can do for them because it's too
18 complicated, it's too labyrinthian, it's too costly
19 and who have really given up. They haven't gone to
20 the streets. We do have a remarkably resilient
21 system, but many people, including among the most
22 vulnerable in the country, the victims of domestic
23 violence whom I met, the homeless vets whom I met, 122
1 many people have simply given up.
2 So it's clear that it's not just a lack
3 of confidence in the sense that we can kind of pump
4 up the confidence rhetorically or by -- by hiring
5 some Mad Men kind of Madison Avenue outfit to say,
6 come on, be more confident in the system of justice;
7 people lack confidence because access is genuinely
8 limited and it's limited not only for the very poor,
9 but, as I said, for the middle class and it's limited
10 often because we don't have the kind of commitment to
11 simplifying the law.
12 I mean, one of the things that's
13 remarkable is that the laws are often written not
14 only in terms that most law students can't readily
15 understand, certainly a certiorari, in terms of most
16 people can't get. The legal profession has, like it
17 or not, a vested interest from in those laws
18 complicated.
19 I mean, you invest all this money, as
20 you heard, you graduate from law school with a
21 massive pile of debt. How much of your time are
22 you going to spend in streamlining the laws so that
23 your services are less necessary? That's something 123
1 that needs to be done.
2 MS. JONES: Professor Tribe, thank you
3 for coming in to speak with us today. Good to see
4 you.
5 PROFESSOR TRIBE: Good to see you.
6 MS. JONES: Professor Tribe, in the
7 case that you -- recent case that you just described
8 to us, the supreme court case, we both know full well
9 that the Court knew exactly what it was doing and
10 that it was closing the courthouse door to -- to
11 millions of people affected. They had to have known
12 that would be the result of that decision. Why do
13 you think they did that?
14 PROFESSOR TRIBE: Well, I don't
15 question their good faith. I mean, I do honestly
16 think that the five justices in the majority felt
17 that a fair reading of the Federal Arbitration Act of
18 1925 made it preempt the California law. Whether
19 they might have seen it through a slightly different
20 lens if at least the justice department had weighed
21 in because there were arguments, excellent arguments,
22 that I thought could have been made and that were
23 only partly articulated, whether one of those five 124
1 votes might have been different if the justice
2 department had played a more active role, I can't
3 know. But I tend not to question the motives of the
4 judges. I mean, they surely persuade themselves that
5 they are reading the law fairly.
6 There is a case that David and Ted and
7 I were involved in, for example, in which I did not
8 join some of the critics of what the court did on the
9 basis of some allegation that they were trying to
10 preserve a Republican form of government with a
11 capital R rather than a small R. I didn't believe
12 that. I still don't. I think that legal questions
13 are sufficiently complicated that people of good
14 faith can reasonably disagree, but that means we have
15 to try all the harder to put a weight on the scale
16 through the best arguments we can muster in support
17 of positions that will make access -- that will make
18 justice more acceptable.
19 MS. JONES: Did any of these people
20 make the argument that the justice department was
21 making?
22 PROFESSOR TRIBE: Well, there were so
23 many amicus briefs, I was so disappointed when I 125
1 was unsuccessful in persuading the office of the
2 Solicitor General that I didn't read them all, to
3 be honest with you, so I'm not sure.
4 But there is, for good reason, an added
5 weight that the argument made by the SG carries if
6 it's made. I think if Ted Olson had made it or
7 Elena Kagan had still been there and made it, it
8 would have carried some weight.
9 CHAIRMAN BOIES: Any other questions?
10 Thank you again.
11 PROFESSOR TRIBE: Thank you.
12 CHAIRMAN BOIES: Mr. Samuels, welcome.
13 MR. SAMUELS: Thank you very much.
14 CHAIRMAN BOIES: Thank you for coming.
15 MR. SAMUELS: Good afternoon, now,
16 members of the task force. I am pleased to be able
17 to address the task force on behalf of the business
18 and industry association of New Hampshire, which is
19 our statewide Chamber of Commerce.
20 My name is Dick Samuels. I happen
21 to be an attorney at a relatively large firm in
22 Manchester, New Hampshire, but I'm going to try to
23 address this as a businessperson and on behalf of the 126
1 business community.
2 It is not easy to not be an attorney.
3 I've been doing it for a few years.
4 CHAIRMAN BOIES: We will not hold your
5 Bar membership against you.
6 MR. TOBER: In the pejorative sense.
7 MR. SAMUELS: The Business and Industry
8 Association in New Hampshire, which I'll refer to as
9 the BIA to save a little time, represents
10 approximately 2,300 businesses in our state,
11 employing over 86,000 employees.
12 The businesses that are the members of
13 the BIA represent a wide array of industries and
14 businesses that range in size from one to thousands
15 of employees. I am the immediate past chair and I'm
16 presently no longer the chair of the BIA Board of
17 Directors. My brief comments on the importance of
18 the state court system are from the perspective of
19 the New Hampshire businesses, what I think my
20 interactions with business clients as a lawyer afford
21 me the advantage of having a direct perspective on
22 the role and operation of our state courts in the
23 eyes of multiple businesses. I am a business 127
1 securities M&A attorney, not a trial lawyer.
2 The BIA understands that the task
3 force's role is to consider consequences of
4 underfunding of the justice system and consequences
5 of the under -- of that underfunding to the balance
6 of power among the branches of state government. For
7 reasons that I will describe, the BIA and the
8 business community is concerned about the
9 underfunding of our courts. However, please
10 understand that our organization has intentionally
11 not taken a position on funding and the cuts in
12 funding that are currently being proposed by our
13 Governor and Legislature. So my remarks should not
14 be construed as a plea for restoration or increases
15 of funding in our state judicial system as either a
16 higher priority or a lower policy priority than other
17 areas of New Hampshire state government.
18 Most businesspeople recognize that
19 litigation, whether in state or federal court,
20 regardless of how efficiently the courts operate, is
21 something to be avoided at all costs. The same is
22 true of alternative dispute resolution. Businesses
23 succeed by manufacturing goods and by selling goods 128
1 and services, not by litigating, which is a
2 distraction from business. As one of my more senior
3 partners, a trial lawyer, tells clients, litigation
4 is the world's most expensive indoor sport.
5 Of course, sometimes commercial
6 disputes are not susceptible to even rational people
7 acting in good faith resolving on their own. It may
8 be that the gap of legitimate views of a matter is
9 simply too wide to bridge or one party cannot afford
10 to settle or one or both parties to a commercial
11 dispute are not acting reasonably or have unrealistic
12 expectations. When that occurs, businesses may have
13 no practical alternative but to have someone else
14 resolve the dispute. For reasons that former Chief
15 Justice Broderick has often described better than I
16 can, businesses have an interest in the state courts
17 being the forum for dispute resolution, though that's
18 true only if those courts can do so efficiently and
19 expeditiously.
20 New Hampshire is a state that, as you
21 may know, is generally considered to be a very
22 favorable place to conduct business. The reasons for
23 that are many, including no personal income or sales 129
1 tax and an overall low tax burden, a productive and
2 well-educated workforce and business-friendly
3 policies. I don't believe that access to the courts
4 and well-developed business case law is a factor that
5 businesses consider when deciding to locate or expand
6 in a particular state, which is fortunate for us
7 because we have little commercial and business law
8 case law here in New Hampshire relative to a larger
9 money centered state.
10 New Hampshire is the home to
11 predominantly privately held businesses, many very
12 small, of approximately 12 public companies, only 12
13 public companies that are headquartered here in
14 New Hampshire. A very small number, only one, is
15 incorporated under New Hampshire law.
16 Nevertheless, there is little question
17 that those businesses that are here -- for those
18 businesses that are here meaningful access to our
19 state courts is very important. For businesses,
20 meaningful access means a forum that can resolve
21 disputes quickly, fairly, and in a cost-effective
22 manner. In order for that to occur, businesses need
23 a court system that is fully staffed, which at this 130
1 juncture is far from the case here in New Hampshire.
2 A court system that is understaffed with judges will
3 not work well. Regrettably, a general observation of
4 commercial litigators here is that after more than a
5 decade in which our state court docket had become
6 significantly less crowded and matters scheduled for
7 trial far more quickly than they had been, the system
8 is now working less well. That may be a product of
9 inadequate funding and judicial vacancies going
10 unfilled.
11 Commercial cases scheduled for trial
12 are increasingly being bumped for other matters,
13 sometimes more than once. Each time that occurs,
14 the client and counsel prepare again, which increases
15 costs, removes management from businesses, and
16 reduces the pressure of the parties -- on the party
17 to settle.
18 When commercial litigants have unequal
19 resources, which is very often the case, the increase
20 in delay works unfairly to the advantage of the
21 better financed party. Litigants take that calculus
22 into account, as you probably all know. Turning
23 commercial disputes into endurance contests has 131
1 little to do with justice.
2 There are other byproducts of state
3 courts not operating efficiently. Inefficient courts
4 promote businesses resorting to arbitration, which
5 contrary to common belief, can be more expensive than
6 litigation, can fail to afford legitimate and useful
7 discovery to the litigants, and in the long-term,
8 reduces the development of precedent that can
9 instruct businesses in the conduct of commerce.
10 A very common criticism of arbitration
11 leveled by businesses and businesspeople that have
12 utilized it is that arbitrators too often split the
13 baby and avoid decisive rulings that may be harsh on
14 one party. Over the long term, significantly
15 underfunded, understaffed courts may evolve into a
16 system serving largely criminal and pro se litigants
17 which, in turn, may attract fewer excellent lawyers
18 to the bench.
19 Finally, there is a bright spot for
20 New Hampshire businesses in its establishment of the
21 dedicated business court docket, which occurred only
22 a couple of years ago. The Business and Industry
23 Association supported the establishment of the 132
1 business court. Trial lawyers have thus far been
2 pleased with this fairly new court which is presided
3 over by one judge with many years of experience as a
4 commercial litigator. The business docket judge
5 knows the law, acts decisively, and renders timely
6 decisions. He publishes decisions and, most
7 importantly, gives precedent to the business docket
8 and devotes the time the litigants need.
9 The prospect of cases being heard more
10 quickly and with a greater degree of expertise is
11 almost certain to shift litigation from private
12 systems back to the superior court.
13 At the moment, the procedure here is
14 that both parties have to consent to business court
15 jurisdiction. There are reasons for that which are
16 purely local, but those lawyers with whom I've talked
17 have -- and that have utilized the business court
18 universally would like to see that system changed to
19 where either party in a business dispute can remove
20 or bring a case in the business court and have it
21 remain there.
22 That completes my prepared comments.
23 CHAIRMAN BOIES: Thank you very much. 133
1 MR. WEISENBERG: I do have a question.
2 Mr. Samuels, thank you again.
3 Did we hear you correctly when you
4 began your conversation that you said that the
5 BIA has not taken a position on the funding --
6 underfunding of the court system, has not really
7 weighed in?
8 MR. SAMUELS: As a priority relative
9 to the funding or underfunding of other areas of
10 government, all -- many of which are in play right
11 now in our Legislature, as they are in many state
12 Legislatures. Yes.
13 MR. WEISENBERG: But I guess the
14 follow-up question, have you weighed in on the fact
15 that the system is, in fact, suffering and is in need
16 of additional resources and able to deliver justice
17 in a more efficient and expeditious fashion?
18 MR. SAMUELS: No, we have not, but at
19 this time when all of the -- those funding issues are
20 in play, we would not -- for the reason that we are
21 not going to choose winners and losers among many
22 important public policies.
23 CHAIRMAN BOIES: I'm a little confused 134
1 by that last answer --
2 MS. JONES: Very.
3 CHAIRMAN BOIES: -- because I had
4 thought that you had said that, first, you believed
5 that adequate funding was important to the business
6 community and, second, that you believed that the
7 courts were not adequately funded now, but, third,
8 that you -- your organization was not taking a
9 position as to whether that problem had a higher or
10 lower or the same priority as other funding problems
11 in New Hampshire. That's what I had understood you
12 to say.
13 MR. SAMUELS: That's correct, yes.
14 MR. KOGAN: That's what he just said.
15 CHAIRMAN BOIES: And I -- which is --
16 which is not to say that you're not taking a position
17 that there's underfunding; it's just that you're not
18 taking a position as to the relative prioritization
19 of solving that problem with respect -- amongst other
20 problems.
21 MR. SAMUELS: Right. We haven't
22 weighed in in making statements to the Legislature
23 or testifying on particular bills. 135
1 CHAIRMAN BOIES: Any questions?
2 MS. JONES: I don't know whether I
3 should ask this or not because I don't think I fully
4 understood, but thank for your testimony, and just a
5 question.
6 Do you believe that the court system is
7 somehow different from other agencies that may be
8 part of the executive -- executive branch or the
9 legislative branch?
10 MR. SAMUELS: I hate to do this, but
11 I'm here as a representative of the business
12 community speaking for the BIA. I could answer that
13 question personally and as a lawyer, but that's not
14 really my role.
15 MS. JONES: Okay.
16 MR. SAMUELS: Unless you ask again --
17 MS. JONES: You don't have to answer it
18 if you don't want to. If you do want to in any way
19 you choose or in any role you wish to adopt, we would
20 value it. We would love to hear it.
21 MR. SAMUELS: I'll say this. I did
22 listen to the radio program on which some of you
23 appeared this morning and everyone was making the 136
1 point -- I believe was making the point that the
2 judicial system is a branch of government and not a
3 department of the state, and obviously that makes a
4 lot of sense. But, that said, if money is short, I
5 don't think it's the role of the business community
6 to decide whether it is more appropriate to fund
7 courts at the cost of Medicaid funding or our
8 education system or so many other priorities that
9 are pressing. And that's really our position with
10 respect to weighing in on those matters.
11 MS. JONES: Thank you.
12 CHAIRMAN BOIES: Thank you very much.
13 MR. SAMUELS: Thank you.
14 CHAIRMAN BOIES: The good news is that
15 we did not fall further behind. The bad news is we
16 did not make up any time.
17 We -- we're scheduled to come back from
18 lunch at 2:15. Should we still do that.
19 CHAIRMAN OLSON: Why don't we make it
20 2:30. Does that work for everyone?
21 CHAIRMAN BOIES: Okay.
22 DEAN BRODERICK: Can I just say --
23 obviously you're the chairs, so that's fine. I was 137
1 just going to say that those who are here, if you're
2 on the task force, if you've been a witness or a
3 member of the media, we have lunch in the boardroom
4 down the hall. If you're not in that group, there's
5 a lunchroom downstairs. We're also having a
6 barbecue. I might do that myself. I think it's
7 outside. So you're welcome to do that.
8 CHAIRMAN OLSON: Okay. So is 2:30
9 okay?
10 CHAIRMAN BOIES: 2:30.
11 CHAIRMAN OLSON: 2:30.
12 (Lunch recess taken from 1:53 p.m.
13 until 2:32 p.m.)
14 PANEL THREE
15 CHAIRWOMAN OLSON: Our third and final
16 panel of today consists of task force members Ned
17 Madeira -- and pardon me; I'm going to use my cheat
18 sheet here -- Jon Mills and Judge Del Preore and
19 Thomas Sager, Tommy Preston.
20 And we are honored to have a presence
21 from the federal bench today. We thank you for
22 coming, Judge Norma Shapiro, from the Eastern
23 District of Pennsylvania. You may begin. 138
1 JUDGE SHAPIRO: Thank you.
2 Good afternoon, Lady Olson and the
3 other panel members. It's quite intimidating to
4 be the only one speaking on the, quote, federal
5 perspective, but as a federal trial judge, I hold
6 my position for life on good behavior.
7 So I'll proceed by thanking you
8 for allowing me as the chair in the ABA Standing
9 Commission on Federal Judicial Improvements to
10 testify about federal court fiscal problems.
11 Frankly, our problems pale in
12 comparison with the threats to the state judiciaries,
13 but the task force mission statement includes the
14 federal courts as an object of concern, so I'm
15 honored to express my personal views with the hope
16 they'll help you in your extremely timely and
17 important task.
18 In recent years, the federal judiciary
19 has not fared as badly as the state judiciaries in
20 terms of the funding it's received, but the current
21 budget situation is unlike any other the judiciary
22 has faced. When there was a budgetary impasse
23 earlier this year and fear of a federal government 139
1 shutdown, the administration thought the courts could
2 function for only two or three weeks. Fortunately,
3 when the 2011 fiscal budget was adopted, the
4 judiciary received almost a one percent increase
5 above fiscal year 2010 appropriations.
6 While not nearly the growth the
7 judiciary has enjoyed in the past, it was far better
8 than the steep funding cuts made to other federal
9 programs and agencies, perhaps because of the cost
10 control measures instituted in the last few years
11 under the initial leadership of the late Chief
12 Justice Rehnquist. The congressional emphasis on
13 deficit reductions suggests even a modest one percent
14 increase may not be obtainable in the future. The
15 judiciary's expected to receive less money in 2012
16 than it has in 2011, at a time when the workload
17 continues to grow and our need for defense criminal
18 lawyers increases as well.
19 With no increase in the 2012 funding
20 levels, court staff may have to be reduced below
21 the number of people working in our probation and
22 pretrial services offices and clerk offices in the
23 circuit, district, and bankruptcy courts and criminal 140
1 trials will be delayed for failure of funds to pay
2 defense counsel.
3 But our biggest problems, apart from
4 judicial salaries and the consequent effect on morale
5 and tenure of judges, are judicial vacancies and the
6 politicization of the confirmation process. There
7 hasn't been an omnibus judge bill for years. The
8 administrative office has requested Congress to
9 establish 88 new judgeships based on workload
10 statistics. A bipartisan group of senators has
11 introduced the Emergency Relief Act of 2011, Senate
12 1014, to address some of the greatest judgeship
13 needs. It provides for ten additional temporary
14 judgeships -- judgeships, excuse me -- in California,
15 Texas, and Arizona and would make permanent two
16 additional temporary judgeships. But as of May 23rd,
17 2011, there were 86 vacancies of 53 pending
18 nominations. 40 are pending in committee, only 13
19 are pending on the Senate floor.
20 While there's been some welcome
21 movement on confirmation most recently, especially
22 for the district courts, there are still 33 judicial
23 emergencies. And I thank our ABA Washington office 141
1 Denise Cardman, for providing me with those
2 statistics. I haven't been able to keep count
3 myself.
4 Our Constitution established federal
5 courts of limited jurisdiction. The Federalist
6 Papers make clear that our founding fathers
7 contemplated well-functioning state judiciaries.
8 In the December 1995 long-range plan
9 for the federal courts, Judge Edward R. Becker wrote,
10 judicial federalism relies on the principle that the
11 state and federal courts together comprise an
12 integrated system for the delivery of justice in the
13 United States. It follows from this fundamental view
14 of the nature of our federal system of government
15 that the jurisdiction of the federal courts should
16 complement, not supplant, that of the state courts.
17 The great majority of litigation occurs
18 in state courts, as is shown by charge prepared by
19 Professor Judith Resnick and Yale law students with
20 the help of the National Center for State Courts.
21 I call to your attention now only
22 three. The full set of 14 are attached to my written
23 remarks that I will make part of your official 142
1 record.
2 In 2001, there were 37 million filings
3 in state courts. In contrast, the number of filings
4 in federal court totaled only one and a half million
5 bankruptcy cases and 318,000 civil and criminal
6 cases. The number of federal judgeships at both the
7 district and circuit level was 853 in 2001.
8 Now, state courts employ a large number
9 of limited jurisdiction judges, such as small claims
10 judges in many states as well as general jurisdiction
11 trial level judges. From 1975 to 2008, the years for
12 which statistics are available, the number of general
13 jurisdiction judgeships alone has nearly doubled from
14 65,000 (sic) to 11,800.
15 So even when the federal courts have
16 subject matter jurisdiction, it's usually concurrent;
17 for example, diversity cases, discrimination cases,
18 product liability cases, mass torts, et cetera. We
19 require -- the federal courts require exhaustion of
20 state court remedies in habeas cases and complaints
21 by prisoners about conditions of confinement. If
22 access to state courts is reduced by their inability
23 to function, federal courts will be overburdened by 143
1 those able to gain alternative access and our funding
2 problems become much more serious. As our case loads
3 increase, so do the delays in having a trial and ADR
4 or private judging and settlement, whether or not
5 justified, will become more and more necessary.
6 The loss of access to state court is
7 usually the loss of a lower cost alternative,
8 affecting the middle class as well as the poorest of
9 our citizens.
10 Court underfunding in the United States
11 may also compromise this country's efforts to promote
12 the rule of law abroad. United States statements
13 that access to neutral tribunals for the enforcement
14 of contracts is essential to a well-functioning
15 economy sounds hollow if we don't lead by example.
16 Now, you've heard of the adverse
17 effects of the loss of court funding on the economy;
18 the loss of jobs, the detrimental effect on commerce,
19 both in trust and in interstate, but, to me, those
20 efforts are secondary. The real issue is loss of
21 liberty. The late Chief Justice Rehnquist said, our
22 courts are jewels in the crown of the Constitution.
23 Without courts adequately funded, our right to 144
1 liberty is a hollow phrase.
2 Most of our citizens form a view of
3 their rights from the functioning of our state
4 courts, if not our TV courts. We the people are
5 fascinated by the courts and the ABA, representing
6 400,000 lawyers, law professors, Bar executives,
7 administrators and judges can't let them starve to
8 death.
9 I've been a judge for 32 years. I'm an
10 activist judge and proud of it because I devote the
11 time not required for my work to trying to preserve,
12 protect, and defend not just the Constitution, but
13 the judicial system so essential to a government
14 under law with liberty and justice for all.
15 For years, first as an active judge and
16 now as a senior judge, I've worked as a member of the
17 ABA for judicial education, judicial independence now
18 fair and impartial courts, and judicial outreach.
19 After reading the transcript of your hearing in
20 Atlanta, it's obvious to me that more time and energy
21 must be devoted to funding our state courts. Like
22 judicial accountability, judicial independence
23 depends on adequate financing. 145
1 The effort has already begun with
2 Ned Madeira directing our attention to state courts
3 as the least understood branch and justice as the
4 business of government conference last year when
5 legislators and chief justices, lawyers and
6 administrators were convened by him and Justice
7 Mark Martin to a national conference cosponsored by
8 the ABA and the National Center for State Courts.
9 Many worthwhile recommendations resulted from that
10 conference, but the problem which you hope to address
11 is the implementation.
12 Because the preservation of our branch
13 of government is essential to a free society, I have
14 the temerity to make a few personal suggestions that
15 the ABA could engage in, summarized by education,
16 advocacy, cooperation and coordination, media
17 utilization and continuity.
18 The ABA has done wonders in the field
19 of education, especially with civics education for
20 children. As important as this is as a long-term
21 solution, the current crisis requires adult education
22 as well. Just as the ABA has focused on judicial
23 independence and funding for the Legal Services 146
1 Corporation on ABA Day at Washington, judicial
2 funding must be the theme of Law Day all over the
3 country.
4 Judges have to feel free of ethical
5 restraints in explaining the importance of court
6 funding to the administration of justice. A judicial
7 division book by Judge Richard Fruin, Judicial
8 Outreach on a Shoestring, describes many means of
9 judicial outreach costing little or nothing. But to
10 utilize the vast national resources of the ABA, there
11 has to be a coordinator, a staff person or persons
12 whose job description is to make this happen and
13 hopefully situated in our Washington office where so
14 many national organizations also have their offices.
15 Judges and lawyers, usually effective
16 advocates, still need materials supplied to them for
17 these nontraditional activities. As the federal
18 administrative office provides scripts, PowerPoints,
19 speakers bureau, there should be a staff position
20 with an obligation to do that.
21 One would assume lawyers were terrific
22 at advocacy, but we need some contact with
23 organizations which have perfected methods of 147
1 communicating, marketing, or lobbying the public,
2 especially voters, legislators, the business
3 community, et cetera. Marketers, political
4 consultants and lobbyists have something to teach us.
5 Working with other national groups that
6 share our concerns is essential. You've heard from
7 some of their representatives, so I don't need to
8 review their value, but I do need to reemphasize that
9 you need to staff an organization to accomplish that.
10 There's a limit to what volunteer lawyers can and
11 will do, particularly when it requires coordination.
12 Access to newsprint, radio and TV are
13 important, but the use of the social media has become
14 essential. Ability to understand the Internet and
15 utilize all the modern devices of communication may
16 be most important, and don't forget how increasingly
17 influential bloggers have become.
18 I'll mention litigation, but when
19 lawyers resort to courts for what are generally
20 deemed political questions, they're rarely
21 successful. That shouldn't preclude the ABA from
22 assisting litigants in key cases or filing amicus
23 briefs if justified under ABA policy. 148
1 And then, finally, this battle can't be
2 won in a day. Citizens we have convinced grow older;
3 legislators come and go as often as every two years;
4 the economy changes. Procedures must be established
5 to remind those responsible of the importance of
6 court finances. Our efforts are only beginning and
7 they must be coordinated for sustainability.
8 Time doesn't permit me to elaborate on
9 these suggestions or discuss them with you, but the
10 task is not for the summer soldier or the part-time
11 patriot. And like most worthwhile tasks, it takes
12 time and money. We must strive to solve this problem
13 not for ourselves or for lawyers or judges, but for
14 the citizens of our country who we're privileged to
15 serve.
16 Thank you for the opportunity to
17 express some thoughts on the importance of preserving
18 or restoring or making a well-functioning justice
19 system, and I'd be pleased to try to answer any
20 questions now or later.
21 Thank you.
22 CHAIRWOMAN OLSON: I'm going to go down
23 and offer a chance to each of our panelists to ask a 149
1 question and if no one asks, I will end up asking.
2 I'm going to ask all of our witnesses
3 on our session to offer one either creative solution
4 that you have or one that you may have heard earlier
5 in today's proceedings that you think is the best or
6 enlightens of the solutions that have been offered
7 up. So we're really going to push at this stage in
8 our work for creative solutions to this problem.
9 Now, would any of you like to ask the
10 first question or shall that be me?
11 MR. MADEIRA: I'd like the first
12 statement, if I may.
13 I've had the privilege of appearing
14 before Judge Shapiro over these 50 years or so and
15 she really understated one thing. She is an activist
16 judge.
17 JUDGE SHAPIRO: I taught him legal
18 writing in law school.
19 MR. MADEIRA: We have a skit that we
20 can do back and forth, only not that she was older
21 than I am, because she chose to graduate from high
22 school when she was 15. I took the more leisurely
23 route. It goes along and usually the crowd breaks 150
1 up.
2 Norma, one thing that we haven't
3 touched and I don't mean to sandbag you, but a point
4 that I don't think has come up this morning or in
5 discussions a subject dear to the heart of the
6 National Center for State Courts and that is the
7 concept of federal funding to help the state courts
8 through the State Justice Institute and perhaps other
9 entities. And I think that it has got a lot of
10 merit. Unfortunately, the State Justice Institute
11 has been grossly underfunded, a bad trend line, over
12 the last years, but in order for the states to --
13 state courts to do some of the pilot project work
14 that is going to be required moving forward, federal
15 funding would certainly help.
16 Have you had any background or feeling
17 on this other than you support it?
18 JUDGE SHAPIRO: Well, not until I read
19 it in the materials that you provided. I think --
20 I've concentrated on what the American Bar
21 Association can do because that's my experience and
22 background. I think that they can recommend that. I
23 think that on ABA Day in Washington, they've been 151
1 very successful in preventing the demise of the
2 Legal Services Corporation. They might start to
3 reinstitute the same funding for the State Justice
4 Institute. I think it's important. I would like to
5 see Congress fund the federal courts and raise our
6 salaries, perhaps, but I'm not allowed to say that.
7 That's off the record. They all warned me that we're
8 not pushing for increases in federal judges'
9 salaries.
10 But I think that if the federal
11 government mandates the states to do something in
12 the present state of financing that the federal
13 government should provide the funds to do it,
14 personally.
15 MR. MADEIRA: Jon?
16 JUDGE SHAPIRO: I'm not speaking for
17 the administrative office or the President or
18 Congress. I'm just giving you my personal views.
19 MR. MILLS: And, Judge, we appreciate
20 that.
21 Compound question. First, I assume
22 from your testimony that you believe that the federal
23 courts are still underfunded. 152
1 JUDGE SHAPIRO: Yes, and have been for
2 years.
3 MR. MILLS: And although underfunded, I
4 think you indicated that you've probably been cut
5 less than you might have been because of efficiency
6 measures and because of your use of a formula.
7 JUDGE SHAPIRO: Well, we have -- I was
8 speaking at lunch, I think, about my own court. We
9 have volunteer lawyers on an employment
10 discrimination panel and we have volunteer lawyers
11 who represent prisoners in condition of confinement
12 cases, in habeas cases we pay. And, of course, in
13 trials, criminal trials, they get government-provided
14 attorneys.
15 MR. MILLS: So it's fair to say that
16 states -- the state courts, in asking for support,
17 will be better off if they are demonstrating
18 efficiency.
19 JUDGE SHAPIRO: Absolutely. I think
20 that legislators are under a misimpression that we
21 like to waste money and that we sit there thinking of
22 what we can do to buy $200 toilet seats or something.
23 I don't believe we do that, but I hope not. We 153
1 have some problems with the General Services
2 Administration, and we'd like to take over managing
3 our own courthouses. I would particularly like it
4 because then I wouldn't freeze in the winter and die
5 of the heat in the summer.
6 MR. SAGER: Your Honor, welcome. I've
7 been struggling with this, so I'd like to get your
8 thoughts on the whole concept of the federal
9 underfunding situation which does not feel as severe
10 as the states' challenges.
11 Do you think our efforts on behalf of
12 the federal underfunding issue will detract from or
13 otherwise undermine our efforts on behalf of the
14 state courts?
15 JUDGE SHAPIRO: Well, if -- if you have
16 only one pool of funds, if you give to one, you don't
17 give to the other. And the federal court budget is,
18 what, perhaps a half of one percent of the national?
19 I think it's a question of priorities. And courts,
20 to me, are essential to a free society. A free
21 society is very important to me and I think that we
22 should do everything we can to get the funds to make
23 it possible. I think sometimes that people would 154
1 rather have access to the courts even if taxes were
2 raised than -- I mean, what's behind all this is the
3 unwillingness to raise taxes and to feel you have to
4 find the money for everything from one limited pool.
5 And as long as you have to do that, I suppose giving
6 to one detracts from the other.
7 I'm proud of the federal courts. I
8 think we do a good job. It's too expensive, but
9 that's perhaps because of what lawyers charge, not
10 what judges charge.
11 And I haven't noticed a lack of work.
12 That's all I -- I mean, I know the poor people don't
13 have access, but some people do because we're seeing
14 an awful lot of discrimination cases right now; all
15 the people who have lost their jobs come to our
16 court. In Pennsylvania we have termination at will,
17 so that unless they can show discrimination for race,
18 religion or ethnicity, they don't get very far.
19 MR. SAGER: Thank you.
20 CHAIRWOMAN OLSON: Tommy?
21 MR. PRESTON: Judge, I was really
22 excited about you talking about education and the
23 role that the ABA should play in not only educating 155
1 the youth of our country in understanding the court
2 system, but also adult education and I was wondering
3 if you could elaborate just a little bit on
4 specifically what we could do in the ABA to address
5 that issue.
6 JUDGE SHAPIRO: Well, the ABA has a
7 wonderful division or department or something of
8 education with a great many professionals. When it
9 comes to Law Day, May 1st, you get a whole book of
10 things you can do and speeches you can give and the
11 entire legal community gets all excited about some
12 particular thing. It's been jury duty one year -- I
13 can't remember all the themes of Law Day. But one
14 theme ought to be support your courts; without the
15 courts, you're up a creek. And I think if you could
16 imagine a country without courts, it wouldn't be one
17 where most of us would want to live. So that --
18 and -- and I do believe, as I said in my prepared
19 remarks, you'll notice I didn't talk as much about
20 the federal courts and how the federal courts are
21 damaged by ineffective state courts and I think
22 that's an important point to make. We need the state
23 courts. We need them to function properly, quite 156
1 apart from the fact that it's the moral and right
2 thing to do and it's where most people form their --
3 most people know about the state courts, even if it's
4 the traffic court. A small percentage of people come
5 to the federal courts, I think.
6 So they're important to us and I think
7 that we have to support them and see that they're
8 adequately funded. And if you go back and read the
9 long-range studies of the federal courts, I quoted
10 from Judge Becker, but there's one more recent. They
11 all make perfectly clear that the federal courts have
12 a vested interest in the proper functioning of the
13 state courts. And I went back in preparation for
14 this and read the Federalist Papers and it was
15 fascinating and they never intended for the federal
16 courts to dominate the state. It was quite the other
17 way around.
18 I'd be happy to talk to any of you who
19 want to discuss these things privately in my office
20 or yours, as you want. Thank you for letting me
21 come.
22 CHAIRWOMAN OLSON: Thank you very much,
23 Judge Shapiro. 157
1 CHAIRWOMAN OLSON: Welcome. We now
2 have -- hello, Don -- Don Federico from Boston, the
3 Boston Bar Association president and Marilyn
4 McNamara, she's president of the New Hampshire Bar
5 Association, and finally Paul Monzione --
6 MR. MONZIONE: Monzione.
7 CHAIRWOMAN OLSON: -- president for the
8 New Hampshire Association for Justice.
9 MR. FEDERICO: Thank you. I guess I'll
10 start.
11 Thank you for the opportunity to appear
12 and what I'd like to talk with you about today is
13 really some of the things that the Boston Bar
14 Association has been doing in an effort to support
15 the courts.
16 The Boston Bar Association is an
17 association of more than 10,000 lawyers, judges, and
18 law professors in the greater Boston area. We have a
19 three-part mission, one of which is access to
20 justice. Because properly functioning courts are
21 critical to access to justice and courts cannot
22 function properly without adequate funding, we devote
23 a great deal of our time and attention to trying to 158
1 help our courts secure funding.
2 As you've heard from Chief Justice of
3 Administration and Management, Robert Mulligan,
4 earlier today, in recent years, we have not been
5 particularly successful in persuading our Legislature
6 to level fund or increase funding for our courts.
7 The Massachusetts trial court's budget has been
8 repeatedly cut since 2008 and the cost -- the cuts
9 have cost the trial court tens of millions of
10 dollars.
11 To cope with the severe cuts, the court
12 has had in place a hiring freeze for several years,
13 as you heard earlier today, and has been unable to
14 replace the more than 1,000 employees who have left
15 through retirement or for other reasons. Although
16 the remaining judges and staff have soldiered on,
17 they have done so under very difficult circumstances
18 and we're very concerned that they cannot do so
19 indefinitely.
20 The Boston Bar Association, along with
21 other Bars has, therefore, stepped up its effort to
22 help the court secure adequate funding and I'd like
23 to describe for you some of the initiatives we've 159
1 undertaken and how our thinking about them has
2 evolved somewhat over time.
3 Let me start with our written reports
4 on the court budget and I am going to describe a
5 number of materials that we have prepared that are
6 going to be submitted as part of the record in these
7 proceedings.
8 The reports are included. For the past
9 three years, the Boston Bar Association has developed
10 such reports. Copies of these reports are included
11 in the materials. The 2009 and 2010 reports were
12 prepared by task forces we comprised for that
13 particular purpose and those task forces included
14 various Bar leaders, including past presidents of the
15 Boston Bar Association.
16 For 2011, we took a slightly different
17 approach. We enlisted the services of our
18 Administration of Justice section to gather the data
19 needed and to prepare a draft of the report which the
20 BBA staff and I put into final form before we
21 released it just a few weeks ago. Each report has
22 had a different emphasis. In 2009, we focused
23 primarily on the numbers. In 2010, we gathered 160
1 anecdotes of issues facing particular litigants in
2 the courts to try to humanize the issue beyond merely
3 a statistical reporting. This year's report takes
4 even a different approach, a higher level approach,
5 that provides an overview and analysis of what has
6 happened to the courts, why it has happened, how the
7 trial court has responded to the crisis and what is
8 likely to happen if minimally adequate funding is not
9 provided.
10 In preparing our reports, we've
11 followed certain guidelines. First, the report needs
12 to have accurate numbers regarding current funding
13 levels; the number of persons employed by the courts,
14 case loads and clearance rate. We've always been
15 able to get those numbers very readily from Chief
16 Justice Mulligan's office in the trial court and
17 other sources within the judiciary.
18 We also in the reports have attempted
19 to play out in a general way differing scenarios
20 based on whether the court gets the funding it needs.
21 We also pay very close attention to the timing and
22 distribution of the report. We aim to release our
23 reports before the House and Senate release their 161
1 numbers and while there's still time to influence
2 the debate in the Legislature over the final budget
3 number.
4 We disseminate the reports
5 electronically to legislators, judges, rank and file
6 Bar Association members, and members of the media.
7 The reports are accompanied by news releases that
8 function as executive summaries and the reports and
9 news releases are also posted on our Web pages and
10 broadcast by e-mail through social media such as
11 Facebook and Twitter.
12 One advantage of having a Bar
13 Association publish a report like this is that we
14 can say things that need to be said but that the
15 judges really cannot be expected to say. For
16 example, it's easier for a Bar Association to
17 acknowledge the impact that severe budget cuts are
18 having or will have on a court's performance than for
19 a chief justice who bears responsibility for running
20 the courts under even the most difficult
21 circumstances.
22 A well-written credible report takes
23 time to produce. It's also important to very 162
1 carefully select the persons responsible for the
2 preparation of report. At the Boston Bar, we've had
3 reports drafted by partners in law firms who had
4 their ears to the ground and who have access to
5 plugged-in members of the judiciary for purposes of
6 acquiring data and testing certain basic premises.
7 Two key contributors to this year's
8 report were a retired judge with significant
9 experience working in the executive branch at a high
10 level and a lawyer who had more recent experience in
11 the Legislature. We also are fortunate to have an
12 excellent government relations director who worked
13 for legislative leaders before joining the BBA.
14 Courts were not content to rely on the
15 published reports and this year we've made the case
16 for court funding in a variety of additional ways.
17 Through the efforts of our communications director,
18 the day after our report was released, we also were
19 able to place an op-ed in the Boston Herald talking
20 about the difficult situations the courts are in and
21 the need to support the courts, putting it in a way
22 that the lay public hopefully could understand and
23 appreciate it. 163
1 If you go on the Boston Herald Web
2 site, you might find it and you might see comments
3 from people who are not particularly fond of the
4 courts and it did remind me of the remarks. When I
5 heard Professor Tribe speaking, I think what he was
6 saying was exactly right; there are people out there
7 certainly who don't care if you have or think highly
8 enough of the courts, to put it mildly, to want to
9 support them.
10 But hopefully that's not the general
11 public and we -- we believe that the op-ed has an
12 impact. I will say I have received calls from a
13 number of judges after we placed it thanking the Bar
14 Association for doing it and I understand it also has
15 created a little bit of a stir at the Statehouse with
16 the Legislature.
17 We did this because we know that merely
18 creating a report for the consumption of legislators
19 does not draw enough attention to the critical issues
20 at play, nor does it even begin to give rise to any
21 public sentiment in favor of court funding. We
22 believe that there is an important public education
23 component that needs to happen in order to get our 164
1 elected officials more invested in funding the courts
2 and we view that op-ed as a first step in that
3 process.
4 We also strive to make our message
5 clear to our members repeatedly in a variety of ways
6 in order to enlist their support in contacting
7 legislators to lobby for court funding. One example
8 of that effort, again in the materials that will be
9 submitted, is an e-mail that was sent to members just
10 this week urging them to call their senators to
11 advocate for a number of amendments to the trial
12 court's budget, including two amendments that would
13 restore millions of dollars to that budget. We
14 believe that this sort of grass roots effort is an
15 essential element of our strategy to move the needle
16 on court funding.
17 We communicate this message to our
18 members in a variety of other ways; for example, our
19 members receive a weekly e-mail alert called BBA
20 Week, which keeps them informed of pressing issues,
21 including court funding. Our government relations
22 director this year also started a blog on public
23 policy issues which, again, includes a description of 165
1 legislative developments regarding court funding. As
2 mentioned previously, we occasionally send
3 strategically timed e-mail alerts to all of our
4 members in an effort to summons them to action by
5 calling legislators. And this year I used the
6 president's page of the Boston Bar Journal as a
7 vehicle for reminding our members of the need to
8 advocate for the courts when they are under fire from
9 other branches of government, as we have seen happen
10 in a variety of ways in Massachusetts this year.
11 I'd like to conclude with three general
12 observations. First, the courts have no natural
13 constituency. As we explained in this year's report
14 and in our op-ed piece, the electorate generally does
15 not care enough about the court to lobby for their
16 funding. The public has little understanding of or
17 sympathy for the courts and most are likely to be
18 much more focused on funding for such items as jobs,
19 education and health care than on court funding.
20 Again, I think Professor Tribe very
21 accurately described one of the problems that we face
22 in trying to advocate for the courts, but I think
23 there are other issues as well. The public simply, 166
1 in general, does not think about the courts very much
2 and does not care enough about the courts to put any
3 kind of pressure on their elected officials. The
4 public -- most people deal with schools on a daily
5 basis, they deal with job issues on a daily basis,
6 people deal with health care issues frequently, all
7 of which make their way into the Legislature in one
8 way or another. But most people deal with the courts
9 very rarely and many of the people who do are in
10 situations where they would not want to support the
11 courts, criminal defendants, for example.
12 The second concluding point I'd like to
13 make is that our experience in Massachusetts is that
14 only a minority of our legislators are lawyers and
15 that minority is shrinking. We, thus, not only have
16 to persuade them, but we also have to educate our
17 legislators about the important role our courts
18 serve. We also need to know who the lawyers are
19 in the Legislature, particularly in leadership
20 positions, who can help us make the case for the
21 courts in the legislative debates.
22 Finally, we have to be clear in our
23 message, as some of the witnesses said earlier today, 167
1 that the courts are not just a state agency who are
2 an expendable service, but that the judiciary is an
3 indispensable coequal branch of government on which
4 we all depend for the peaceful resolution of
5 disputes, for public safety, and for the preservation
6 of our liberties. We need to communicate and repeat
7 this message at every turn as too many people in the
8 other branches of government and the public that they
9 represent still do not fully appreciate the
10 importance of our courts and the need for a strong,
11 stable and independent judiciary.
12 Thank you.
13 CHAIRWOMAN OLSON: Questions?
14 MR. MADEIRA: One at a time?
15 CHAIRWOMAN OLSON: We were going to ask
16 questions one at a time, correct?
17 CHAIRMAN OLSON: In the past we've done
18 the whole panel, but that's up to you.
19 CHAIRWOMAN OLSON: You're the chairman.
20 MR. MADEIRA: You're the honorary
21 chairman.
22 CHAIRMAN OLSON: You're the chairman
23 right now. 168
1 CHAIRWOMAN OLSON: Let's go ahead and
2 have all three testimonies.
3 MR. MONZIONE: Thank you.
4 Thank you, and good afternoon.
5 I've been limping around the place
6 today and so the real purpose of my being here is
7 I'm trying to find a personal injury lawyer who will
8 represent me. I got in a car accident two weeks ago
9 today. So I'm --
10 MS. MCNAMARA: We can take care of you.
11 MR. MONZIONE: Right. I don't think
12 I'll have a problem.
13 No, but I do thank you and good
14 afternoon.
15 As president of the New Hampshire
16 Association for Justice, I'm grateful to be able to
17 be here this afternoon and to be part of this task
18 force's work.
19 The New Hampshire Association for
20 Justice is also proud to be in support of the work
21 that this task force is doing. Each of our members
22 of the association, when he or she signs on, attests
23 to our mission as an Association for Justice, which, 169
1 in general, is to assure that justice is brought to
2 anyone who has been damaged by the wrongful act of
3 another. And so this idea of access to the courts is
4 integral to the mission of the New Hampshire
5 Association for Justice, as it is to all Associations
6 for Justice throughout the country. So we are
7 particularly interested in this and particularly
8 interested in being as helpful as we can be to your
9 purpose.
10 Several years ago the American
11 Association for Justice, who at that time was ATLA,
12 published some materials to its members and it was
13 a time when the idea of jury trial was somewhat
14 jeopardized. I mean, it's constantly jeopardized
15 from our perspective because we're constantly faced
16 with the idea of legislation both at the federal and
17 state level of so-called tort reform that threatens
18 every now and then to perhaps eliminate or otherwise
19 hinder or do away with a person's right to jury
20 trial.
21 And so this is a subject about which we
22 are very sensitive and have been a part of for many,
23 many years, but particularly several years ago, when 170
1 this issue was particularly heated, the American
2 Association for Justice published some literature and
3 along with it, some slogans. And one slogan in
4 particular is one that I've kept with me and thought
5 about a lot. I've used it in trials to emphasize the
6 importance. But I think it's a very important slogan
7 for us to think about today as we think about this
8 work. And that slogan is that without justice, there
9 is no freedom. And without the jury trial, there is
10 no justice. So if we slightly modified that for our
11 purposes today, without justice, there is no freedom
12 and without access to the courts, there is no
13 justice. So I think this goes to the Chief Justice
14 from Maine's remarks this morning about it's not just
15 the courts, it's our democracy that is at stake here.
16 Without justice, there is no freedom.
17 I think of my father who fought in
18 World War II and all the others who have come after
19 him and most recently, this concept of freedom,
20 particularly here in New Hampshire, our license plate
21 is "Live Free or Die." Without justice, there is no
22 freedom. Without access to the courts, there is no
23 justice. 171
1 And so I think that kind of
2 encapsulates to some extent the importance of what
3 the task force is doing and what we as an Association
4 of Justice in New Hampshire do as part of our regular
5 mission. And so that's why I think working together
6 is so important for this.
7 The other thing that I bring to this
8 particular issue is that in 1981, when I was in -- I
9 was admitted to the Bar in California and I had --
10 I've been practicing in California since then and
11 have kept my license active and I practiced in
12 New Hampshire for a number of years, as well -- as
13 well as in Massachusetts. And I can tell you that in
14 California, particularly back in the '80s and all
15 through the '90s, when you filed a lawsuit on behalf
16 of an injured person or a plaintiff or someone else
17 who was wronged and for whom you were seeking
18 justice, you knew automatically it was going to be
19 five years to get that case to trial. Five years to
20 get that case to trial or to get some kind of
21 recourse. And, of course, the insurance industry or
22 whoever was on the other side of the case, was well
23 aware of those delays and if you think that cases can 172
1 resolve voluntarily through a settlement process
2 without the threat of an immediate trial date or at
3 least resolve in a way that is just, it is extremely
4 difficult.
5 And so, therefore, the ability to
6 resolve cases is lost because once a lawsuit's filed,
7 everybody involved in the process knows it's a
8 five-year process. There's no incentive on the other
9 side's part to think about a reasonable resolution of
10 the case until they have to, unfortunately, is a
11 common experience.
12 And so, you know, I represented
13 hundreds of people, for example, who -- working
14 families where both spouses were out working full
15 time, every day in full-time jobs to earn enough
16 money to own a home -- to buy a house and to afford
17 the mortgage. And there was a time when I had a lot
18 of people whose houses were literally falling apart.
19 They had been negligently constructed, it was a very
20 easily proven fact in this particular case, and so I
21 brought claims for these homeowners.
22 Now, their largest financial
23 investment, everything they've gone out and worked 173
1 full time for, tied up in -- in this mortgage. It's
2 their biggest financial investment, probably the
3 largest asset in real people's lives. Every day they
4 come home, they see the problems, the cracks in the
5 walls, the doors that don't work, whatever the
6 problems were, they wake up in the morning, they see
7 it, they live with this day in and day out, 24 hours
8 a day, first thing when they wake up in the morning,
9 last thing when they go to bed at night. These are
10 real experiences for these people.
11 I had people who had small children and
12 they'd say to me, we want to landscape the yard and
13 put up a swing set and we want our children to play
14 in the yard, maybe we'll put in a pool, whatever it
15 was they were going to do. And, of course, they
16 wouldn't do it because the house is falling apart and
17 they can't put good money after bad, they can't
18 borrow against it, they can't sell it, they're stuck,
19 and so there they were. And I thought, well, we can
20 get remedies for all these folks and I brought a
21 number of lawsuits for hundreds of people at times
22 and, of course, California and the case winds its way
23 five years through the process. And in the end -- 174
1 some cases took seven years. And in the end when
2 there was ultimately compensation for these people
3 and I was able to send them compensation or meet with
4 them and give them compensation, they would look and
5 say, you know, the kids have graduated school,
6 they're off in college, they -- the whole purpose of
7 what we were trying to accomplish, the whole purpose
8 was lost, was absolutely lost. And it was lost
9 because of the delay that it took to get these cases
10 resolved through a legal system.
11 Now, that's just one small example.
12 I've had clients who have died during a lengthy
13 medical malpractice case and never got to see the
14 benefit of the outcome of their cases. I have had
15 that experience firsthand. When I came to
16 New Hampshire, as a result of the tremendous efforts
17 and great work of a -- I guess a task force comprised
18 of members of the bench and Bar, New Hampshire had
19 tackled the problem of delays in getting cases to
20 trial. And when I began practicing here, shortly
21 after that, you would get a case to trial within one
22 year from filing a complaint, within one year. I
23 remember Judge Perkins as one of the judges talking 175
1 about how proud he was to have been part of that
2 force where it got -- and for some coming in coming
3 from a place like California, where it would be five
4 years automatically, to be able to get my clients
5 into the courtroom within one year, I can't tell you
6 how great that felt, what a tremendous accomplishment
7 that was in the state of New Hampshire to be able to
8 afford clients justice within a reasonable period of
9 time.
10 So I can say from a person with
11 firsthand experience that now that's lost. That one
12 year of getting cases into court in the state of
13 New Hampshire is not only threatened, it doesn't
14 exist anymore and it's being threatened even more
15 and more as access to the courts because of financial
16 cuts and budgetary problems dwindles. We're now back
17 into a situation where it's looking more and more
18 like California. And my message to the task force is
19 don't let all places become like California was or
20 probably still is because I know firsthand what that
21 means in real life and real-time to people who are in
22 need of a resolution.
23 The old adage, justice delayed is 176
1 justice denied, which is what we talked about this
2 morning for me has been a reality and, more
3 importantly, for hundreds of my clients over the
4 years.
5 It was -- in listening to
6 Professor Tribe today, I think that I greatly
7 associate and respect the comments that one of
8 the things that will help to get the court system
9 improved and get support financially is to help the
10 image of the lawyer, to take away that -- those
11 reasons why there are so many lawyer jokes. But I
12 can tell you nothing would help that image more
13 than a lawyer's ability to get justice for a client.
14 Because when I hand people compensation after six or
15 seven years of them waiting, there's probably a lot
16 of lawyer jokes that they can think about not only
17 that would apply to me, but to the process. You
18 cannot raise a lawyer's position in the -- and esteem
19 in society when you're working within a system that
20 fails them and the clients feel of you that you
21 weren't able to do anything meaningful or that the
22 system doesn't do anything meaningful.
23 So I agree we need to raise our image 177
1 and one way to raise our image is to show that we can
2 deliver; we can deliver on justice to assist them.
3 I'm glad to know that there may be no
4 more furlough days in New Hampshire, but the lack of
5 judges can be just as devastating in terms of delay
6 here and so to just bring it to a local level and
7 picking up on the idea of offering perhaps a
8 potential helpful solution, at least on the local
9 level as far as New Hampshire is concerned, I would
10 be very interested in picking up on the work that
11 previous task force of those judges and lawyers who
12 worked so hard years ago to get cases to trial in the
13 state of New Hampshire within one year. And I would
14 be very interested in seeing the details of what they
15 did, how much of it was financially driven, how much
16 of it was accomplished through other tasks and means,
17 and pick up where they left off and see if some of
18 what they accomplished then could be built on now
19 under different circumstances, but still be useful.
20 I wouldn't -- I think it would be awful
21 to see that work go to waste and I think they have
22 something to -- to say that would be useful to all of
23 us. And I would like to see at least here in 178
1 New Hampshire for -- it work -- excuse me -- to work
2 with them to see if what they've done couldn't be
3 revised and used again today.
4 So I -- I'm glad to be here. I -- I
5 speak with firsthand experience of where this could
6 end up and where it might go unless the work that
7 we're all trying to accomplish succeeds. And I thank
8 you for all of the hard work.
9 Thank you.
10 CHAIRWOMAN OLSON: Thank you,
11 Mr. Monzione.
12 Now, Ms. McNamara.
13 MS. MCNAMARA: Yes, thank you. I'm
14 Marilyn McNamara. I'm the president of the
15 New Hampshire Bar. I am fully responsible for the
16 beautiful weather we have today. If you believe
17 that, I've got some swamp land.
18 I'm an attorney at Upton & Hatfield
19 here in Concord. I'm been in the Bar for -- this is
20 my 34th year. I've spent about eight years fairly
21 recently being the director of a legal services
22 corporation program here in New Hampshire, so I have
23 a point of view and I will express it, more likely 179
1 than not. Try to stop me.
2 I want -- first I want to give you a
3 little context of New Hampshire, then I want to
4 perhaps complain bitterly about the lack of resources
5 and other issues. I want to talk a little bit about
6 law and culture and maybe a tiny bit of ancient
7 history and then get on to what we are doing in
8 New Hampshire that is truly innovative and exciting
9 and hard and also to talk about possible other
10 solutions I know many of which you've already heard,
11 but which I would like to add to.
12 To give you the context of
13 New Hampshire, which is a rather unique state, if
14 you've not been here before, I hope you appreciate
15 the fact that we do have a bit of our own culture.
16 New Hampshire is among the wealthiest states in the
17 country. It is among the oldest by age. We have a
18 median age actually higher than Florida. Our crime
19 rate is very low. We are well educated. We have
20 access to excellent medical care. There is a
21 hospital on every corner in every city. This is
22 true, quite -- not quite, but -- even for very
23 low-income persons, our state is recognized as being 180
1 one of the healthiest and safest places to raise a
2 child.
3 We have a very high level of
4 volunteerism and get very high marks for tolerance
5 of other cultures and people. Possibly not Yankees
6 fans, but otherwise, we are in a very tolerant place.
7 By agreement with our Governor, our
8 judges pass through a nonpartisan selection committee
9 nominated by the government -- by the Governor,
10 rather, and approved by an Executive Council for a
11 period of term lasting until their seventieth year.
12 We have no income or sales tax. Now's
13 the time to buy if you're here in New Hampshire. By
14 reputation, we are flinty, frugal and independent and
15 there is sufficient evidence to support that
16 characterization.
17 You don't need a helmet to ride your
18 motorcycle in New Hampshire, although your child
19 does. You don't need to purchase car insurance in
20 New Hampshire unless you have previously failed to
21 pay for damages from some accident that you did, in
22 fact, cause. Seat belts are just suggestions if you
23 are an adult and the state motto, as you heard, is 181
1 "Live Free or Die." And every year a certain number
2 of people live free and then die.
3 Now, we claim here in New Hampshire --
4 this is the bitter part. We claim to love liberty
5 and personal freedom, but in our state, the branch of
6 government that upholds the Constitution of our state
7 protects our rights and assures us equality of
8 opportunity under the law is cutting back staff,
9 scheduling into the next year, closing its doors too
10 early and too often, rendering orders and opinions
11 after the damage has been done and cannot be
12 repaired. Colleagues report to me temporary support
13 order hearings scheduled so far out that homes are
14 foreclosed and I know of children who are eating from
15 food pantries whose parents make -- or whose
16 supporting parent makes over a hundred thousand
17 dollars per year because there is no support order
18 and the obligor will not pay. Children eating from
19 food pantries because the court system cannot put
20 orders in place for obligors to pay.
21 Those orders are written but not
22 processed for weeks and they often come too late for
23 true relief to be useful. The filings are lost in 182
1 the crush of paper, sometimes never to be found.
2 That's an inconvenience for lawyers who can document
3 the filing, but devastating for self-represented
4 litigants who may not know to keep good records.
5 This is a -- based on anecdotal, you know, evidence
6 from lawyers who say, I've been told I hadn't filed
7 something, I went to court, I had my documents with
8 me, I showed the court, they found the filings.
9 It's about a level playing field and
10 what we cherish or not and we should cherish the
11 level playing field. It's a sacred place. When you
12 watch television and you watch the football stadium
13 and all the folks rolling out the -- you know, their
14 canvas and baseball players -- you know, baseball
15 diamonds where they roll it out and then roll it back
16 and watch for the rain and make sure the field is
17 good, the field has to be level. It's important for
18 the -- for the sport, if you will.
19 Law isn't a sport, and yet our playing
20 field deserves at least as much attention to being
21 level and fair and true so that everyone on that
22 field can be heard properly and get fairness, and
23 that's not happening. It's not happening here and 183
1 it's not happening elsewhere as well.
2 We've raised -- we've been raised to
3 value fairness, but we don't seem happy to pay for
4 it. Those who seek justice within this judicial
5 system are judged themselves for raising an issue
6 for not working it out, for insisting on judicial
7 processes and this level playing field for doing what
8 the Constitution says we have a right to expect.
9 Having the ability to have a dispute judged and
10 processed and dispensed with is an American
11 expectation, it's a right that we have, and in this
12 little corner of the universe, there have been courts
13 for before -- within the 17th Century, there have
14 been 400 years of courts in the Massachusetts colony
15 area. That's how much our earliest settlers valued
16 dispute resolution. I know that there are over 400
17 years of court because I've seen court records and
18 I'll just give you a couple quick examples, because I
19 think they're kind of interesting.
20 John Emery, Kittery, Maine, fined
21 for providing aid and comfort to the Quakers;
22 Suzanne Pulcifer fined for -- her husband was fined
23 because she wore a silk bonnet to church and that 184
1 was, apparently, wrong; and, of course, the most
2 egregious example, unfortunately, of justice gone
3 wrong, John Proctor hanged his witch in Salem and --
4 again, in 17th Century.
5 We have valued courts even when they've
6 been wrong or crazy or had values that we now no
7 longer support. That's the history of this area of
8 the world and what we're seeing now is it's not there
9 anymore. It's not there effectively at this time.
10 Now, here's another interesting feature
11 of the New Hampshire Constitution. If you haven't
12 had an opportunity to read it, you should perhaps.
13 Article 14 of the New Hampshire Constitution says,
14 every subject of this state is entitled to a certain
15 remedy by having recourse through all to the laws for
16 all injuries he may receive in his person, property,
17 and character to obtain a right and justice freely
18 without being obliged to purchase it completely and
19 without any denial, promptly and without delay,
20 conformably to the laws. That's not happening here.
21 But let me tell you how we're working
22 on it. Among the most interesting and innovative
23 solutions is the consolidation of the -- the district 185
1 court, probate court and family court, working with
2 the Legislature, a body we often complain about, is
3 being rather frugal working with the Legislature.
4 Statute was passed that enables this very innovative
5 consolidation to take place. The expectation is this
6 consolidation will reduce costs by studying how
7 people work and how -- and how they are able to
8 produce their work.
9 We now know that it is more efficient
10 to have people at the counters only, you know, to
11 answer questions for people who pop in, but to
12 otherwise direct people with questions to a call
13 center. And that's something that we will be working
14 on.
15 Another issue, "we" meaning the court
16 system of which I'm not a part, but nevertheless --
17 we will also be working on having some of the paper
18 processing occur outside of regular court hours so
19 that those individuals can work on paper without
20 being interrupted by telephone calls or visits to the
21 window. In fact, tests that have been run on this
22 issue demonstrate I want to say a threefold increase
23 in productivity when the people in the court clerks' 186
1 offices are left alone to do their work, not
2 answering phones and the like. So the call center is
3 very exciting.
4 There have been other innovations as
5 well. We've unfortunately lost a fair number of
6 staff through layoffs. That's not good and we're not
7 happy with it, but the effort is to get more
8 consistency in the courts, to pay the clerk -- one
9 clerk to oversee a number of our courts and then have
10 others beneath to actually take over the day-to-day
11 decision-making and the like so that all of the
12 courts are operating consistently -- with consistency
13 and operating well. These are kind of dicey. We
14 don't really know how everything is going to work.
15 At first it will be perhaps confusing to people; you
16 walk into court, are you in family court, you know,
17 probate court, district court. No one will know.
18 We're lawyers, we're against change, so it will take
19 some time for us all to settle in, but that I -- we
20 think is going to truly save the State and the court
21 system a fair amount of money.
22 The other items which you have asked
23 about, well, what are the solutions, in my view, case 187
1 assessment is a very important way to determine what,
2 if any, services need to be rendered to a particular
3 case at a particular time. Because my field is
4 family law, for example, if you -- lawyers used to do
5 all of the case assessment; people would come to
6 their office, sit down, they would tell you all their
7 story, you would tell them what to do or not, try to
8 work things out and move it along.
9 That doesn't help so much with
10 self-represented litigants and those are the people
11 who are really slowing our court system down, quite
12 frankly. Case assessment means finding out what is
13 needed and then providing only the services that are
14 required rather than asking people to go all through
15 the same process from one beginning -- from the
16 beginning to the end of the process. If they don't
17 need something, they shouldn't be getting -- we don't
18 need to have it.
19 Technology and the increase in the use
20 of technology, I think, has already been discussed
21 and our court system is working very hard to get up
22 to speed moving toward, I think, an electronic filing
23 environment and I think that -- you know, that, too, 188
1 will help us in terms of efficiency.
2 We've talked about, you know,
3 videoconferencing, for example. Although we are a
4 tiny state for many of you, it feels pretty big to us
5 and it would be good for us to be able to do a lot
6 more videoconferencing in some matters of less
7 substance perhaps.
8 I believe in and strongly would
9 support, as does the Bar, robust civic education
10 from kindergarten through, you know, 65 or 80. Civic
11 education that is clear, directed, goal-oriented and
12 tells people what they need to know about the value
13 of our court system and how it works.
14 As a family law lawyer, I deal with
15 many people. You would be shocked perhaps to learn
16 how little people understand about court systems and
17 about the way justice operates.
18 I also believe that the education --
19 our educational system needs to continue to support
20 critical thinking skills and life skills to help
21 people stay out of the trouble they slide into when
22 they don't have the skills needed or the knowledge
23 needed to, for example, enter a contract, enter a 189
1 marriage, you know, buy a car, and otherwise become
2 consumers in our economy.
3 Those are my general comments and I'm
4 happy to take questions, as we all are.
5 Thank you.
6 CHAIRWOMAN OLSON: Thank you,
7 Ms. McNamara.
8 Questions.
9 MR. MADEIRA: Paul, we did this at
10 lunch, but it struck me that the only segment of the
11 Bar that has been traditionally intensely involved
12 with political activities are your ancestors in ATLA
13 and yourself. And while you and I might have slight
14 differences, how organized are they, are you, and how
15 successful have you been in your focused goals?
16 MR. MONZIONE: Well, here -- here in
17 New Hampshire, we've been, I think, very organized.
18 We've met with Chief Justice Dalianis at the very
19 beginning after she was appointed. I and some of the
20 officers of the association met with her, which we
21 felt was very important, of course, to get a
22 perspective of the court as to what she and the court
23 hope to achieve. 190
1 And so that through our lobbying
2 efforts which we have as an association and we are
3 very proud of the lobbying that we do on this topic
4 particularly, we're very well organized in that
5 regard and we've made efforts in Concord at the
6 legislative level to try to assist the court in
7 getting funding legislation passed. And last year we
8 did it under the leadership of our past president and
9 our executive director, came up with alternative
10 funding ideas, as did Chief Justice Broderick at the
11 time, to present so that we weren't just going up
12 there with a lot of complaints about lack of funding;
13 we were trying to go the next step and actually
14 suggest ideas as to where funding might be gotten.
15 But, of course, like everything else, it gets very
16 political and if you identify sources of funds, there
17 are going to be other people who are going to want
18 those sources as well, surprise, and those -- those
19 efforts, while good, I think didn't quite succeed.
20 But in short answer, I think we're very
21 well organized. We're working closely with the
22 courts. We have with the justices who are forming
23 this new court, the circuit court, we've met with 191
1 them as well, Justices King and Kelly, to see what
2 that's all about and to help them particularly among
3 our membership to support that idea if, indeed,
4 that's the way to go.
5 So, no, we continue to do that. And I
6 think that's another important purpose of our being
7 here today, too, because to have coordinated efforts
8 and as much information as we can get and understand
9 as we go forward with the Legislature, I think would
10 be very helpful.
11 MR. MILLS: Mr. Federico, you
12 highlighted something I think is becoming
13 increasingly apparent, your statement about the
14 courts don't have a natural constituency. And you
15 furthermore pointed out, I think several of you, that
16 even when they win, the participants in the system
17 may not be happy and of course we understand there
18 are people who lose.
19 So one of the things that I've thought
20 you might help us with expressing is that you have
21 developed an ongoing grass roots continuing
22 commitment to communication with the Legislature. So
23 what can -- how successful is that, what can we learn 192
1 from that, and are there any other specific proposals
2 about communication that you think work well?
3 MR. FEDERICO: Sure. You know, I was
4 speaking, actually, during the lunch break with Chief
5 Justice Mulligan about this.
6 It often doesn't feel like we're
7 successful because, as you've heard, despite our
8 efforts, the court budget continues to get cut. But
9 as Chief Justice Mulligan put it, we may not feel
10 like we're having a direct or immediate impact, but
11 long-term, the situation, first of all, would likely
12 be worse if we weren't doing what we're doing and
13 long-term hopefully we will have an impact.
14 The one thought I had, we're really, I
15 think, just beginning the approach of community
16 outreach beyond the Bar that I described when I
17 mentioned the op-ed piece. I think we need to do
18 more of that. That's a very long-term solution and I
19 don't even know what kind of difference it will make,
20 but I think we have a duty to really get out there in
21 the communities and make sure people outside of the
22 legal profession have a better understanding of the
23 courts. 193
1 The other thing I would say is this.
2 And we have done -- we've actually done a fair amount
3 of this in Boston -- engage the business community.
4 I've heard comments earlier today about the business
5 community having some understandable concerns about
6 prioritizing courts above other things, but I really
7 think that the business community needs to be very
8 much engaged in this effort. We have a group of very
9 committed general counsels in Massachusetts and I
10 think you start with the general counsels. And some
11 of the leaders within the Boston Bar Association are
12 general counsels of major corporations. In the last
13 couple of years, they have put together letters
14 signed by a hundred general counsels of businesses in
15 Massachusetts to the Legislature to advocate for
16 court funding. Once you get the general counsels
17 engaged, you can then hope that they, in turn, will
18 get the CEOs engaged and the politicians who are
19 controlling the budgetary decision will listen to the
20 CEOs.
21 So that's another strategy that I think
22 this is an issue -- you know, Mr. Madeira, I think
23 was addressing a trial of the Bar, the plaintiff's 194
1 Bar's involvement in these types of issues. I think
2 the plaintiff's Bar and the general counsels share
3 this concern, that our courts be able to resolve
4 disputes and resolve them efficiently and with some
5 expediency. And I think that would be the next thing
6 I would recommend doing.
7 CHAIRWOMAN OLSON: Thank you very much.
8 I'm afraid our next panel has a time
9 issue, so we need to conclude with your remarks, but
10 thank you all very much for coming. It's been very
11 helpful.
12 MS. MCNAMARA: I would like to just say
13 one last thing, and that is Civil Gideon.
14 CHAIRWOMAN OLSON: Welcome, Chief
15 Justice Suttell from Rhode Island and Bill McGraw.
16 MR. MCGRAW: Correct.
17 CHAIRWOMAN OLSON: Thank you.
18 JUSTICE SUTTELL: Thank you very much,
19 Madam Chair. I'm very pleased to be here this
20 afternoon before the task force and appreciate the
21 opportunity to appear before you.
22 I am deeply grateful to the ABA and to
23 all of the members of the task force for the time and 195
1 effort you're putting into this very significant
2 subject that will undoubtedly take the concerted
3 effort of both the bench and Bar to bring -- to
4 ensure the rights and freedoms in our system of
5 justice that we enjoy as Americans to ensure that it
6 will continue to flourish.
7 I also appreciate your indulgence in
8 taking me somewhat out of time. It's only a two and
9 a half hour drive from Providence, but I had the
10 commitments this morning and I couldn't get up here
11 in the morning.
12 I will say I know you're nearing the
13 end of the very long day, and as chief justice, I
14 often invite counsel to rest on their briefs. I do
15 have prepared remarks and I will not take offense if
16 you ask me to rest on my briefs.
17 I recently gave a commencement address
18 and quoted the following words to the graduating
19 students: "To no one will we sell, to no one will we
20 deny or delay right or justice."
21 Now, those words are not from the
22 federal Constitution; they're from the Magna Carta of
23 1215. They are the underpinnings of our judicial 196
1 system. Today justice may not be for sale, but it
2 certainly is delayed in many of our courtrooms and
3 for a growing number of people who lack the resources
4 to access our justice system, it is, indeed, denied.
5 Much of what I say will be undoubtedly
6 repetitious of what you've already heard, but I
7 suspect that there are common themes that you will
8 discover as you travel across the country. I also
9 suspect that you will find that each state has its
10 own unique experience, depending on the structure of
11 its government and its history.
12 The Rhode Island experience is shaped
13 largely by its size and by its history. We certainly
14 have an interesting history in Rhode Island. We were
15 the first colony to declare its independence, yet the
16 last of the original 13 to ratify the Constitution.
17 In fact, we were so fiercely distrustful of a strong
18 central government that we refused to send any
19 delegates to the Constitutional Convention. In large
20 part, that was due to the fact that the colonial
21 charter, the 1663 charter of King Charles II granted
22 to Rhode Island an inordinate amount of
23 self-government in autonomy for that period. 197
1 Rather than adopt a constitution as the
2 citizens of Massachusetts and New Hampshire did,
3 Rhode Islanders were so seemingly content with our
4 colonial charter that it defined the structure of
5 government that we continued to operate under the
6 charter until our first constitution went into effect
7 in 1943.
8 Now, one aspect of an enlightened
9 government that the charter did not provide was an
10 independent judiciary. Trial judges were elected by
11 the general assembly until 1935 when the power of
12 appointment was conferred on the Governor and members
13 of the supreme court were elected by the House and
14 Senate sitting in grand committee until 1994. Our
15 Constitution also contained a provision that allowed
16 the general assembly to declare a seat on the supreme
17 court vacant on the first day of its session after
18 each election, a power which it exercised to 1935,
19 removing all five members of the supreme court in
20 what is known in Rhode Island's history as the
21 bloodless revolution.
22 As recently as 1999, our supreme
23 court issued an advisory opinion stating that 198
1 Rhode Island's history is that of a quintessential
2 system for parliamentary supremacy. That opinion
3 added impetus to a growing movement for governmental
4 reform, which culminated in the adoption of the
5 separation of powers amendment to our Constitution in
6 2004.
7 Today we are a unified court system
8 consisting of a supreme, superior, family, district
9 and workers' compensation court as well as a traffic
10 tribunal. Approximately 88 percent of our budget is
11 derived from state general revenue funds, with the
12 balance coming from federal funds and restricted
13 receipts.
14 I would like to highlight this
15 afternoon what I believe are three broad challenges
16 to the judicial system. The first is what I would
17 call a direct challenge, and that is the attempt to
18 remove a judge for having rendered a controversial
19 decision. The problem is obviously most acute in
20 states where judicial officers are elected or must
21 stand for retention. That is a concept that is
22 foreign to Rhode Island. We are appointed, as our
23 federal counterparts, for life on good behavior, so I 199
1 will not dwell on the subject.
2 The foundation of our judicial system,
3 however, is an independent judiciary and our policies
4 should support the independence. Judges may not be
5 immune to public opinion, but their responsibility
6 and allegiance must always be to the rule of law and
7 not the popular will.
8 The second challenge I would mention is
9 ignorance or a lack of understanding of how the
10 justice system works and its proper role in a free
11 society. Some of this is certainly attributable to a
12 declining emphasis on civics education in our schools
13 today. I would suggest that the underlying causes
14 are far broader than the judicial system is capable
15 of solving. I do believe, however, that the
16 judiciary has an important role to play.
17 We have long considered public outreach
18 to be one of our missions in the Rhode Island
19 Judiciary. Our supreme court holds court sessions at
20 area high schools twice a year. On Law Day, all of
21 our judges and many members of the Bar speak at high
22 schools and middle schools and recently we have
23 embraced the iCivics program, which is being 200
1 championed by Justice Sandra Day O'Connor. We have
2 tested it in four schools and found that the
3 enthusiasm is great not only among the students, but
4 among the teachers. It is a way of providing civics
5 education at a relatively low cost.
6 I do believe that outreach and
7 education are legitimate functions of our court and
8 are proper elements of a judicial budget. People
9 must understand that the judiciary is a coequal
10 branch of government and not simply a state agency.
11 I also think it important that our
12 ethics of outreach and education be targeted directly
13 toward those who hold the proverbial purse strings,
14 state legislators. It is essential that the
15 judiciary maintain an open, continuing dialogue with
16 the Legislature. Fortunately, because of our size in
17 Rhode Island, that's not hard to do. All of the --
18 all of the players tend to know each other and we
19 have frequent contact.
20 What we are finding, however, and I
21 suspect this is a national trend, is that after each
22 election, there are fewer and fewer lawyers in the
23 Legislature, thus fewer and fewer legislators who 201
1 understand and appreciate how the judiciary
2 functions.
3 One successful program we initiated
4 several years ago is a legislators orientation day.
5 We do this every two years at the start of each
6 legislative term. We pick the legislators up by bus
7 at the Statehouse and take them to the family and
8 district courts first thing in the morning when the
9 courtrooms and hallways are jammed. Then eventually
10 we bring them to the supreme court for lunch. The
11 program is primarily aimed at freshmen legislators,
12 but we find that some come back year after year.
13 Probably for the free lunch.
14 With respect to outreach and education,
15 it is an area where the local Bar associations can be
16 of great importance. In Rhode Island, the courts
17 have a very good relationship with our state Bar
18 association. We have little trouble finding
19 attorneys willing to visit schools on Law Day or to
20 participate in civics programs. I also think that
21 the Bar Association should be active in ensuring that
22 our court systems are adequately funded and that I --
23 I was delighted to hear the efforts of the Boston Bar 202
1 Association and what they are doing in terms of
2 lobbying.
3 The final challenge to our judicial
4 system I would mention, and probably of greatest
5 importance to this task force, is underfunding.
6 Compared to other states that you may have heard
7 from, I suspect that Rhode Island is faring
8 reasonably well. We have not had to shut down our
9 courtrooms and we have not had to lay off employees.
10 I do not consider this to be a cause for any
11 optimism, however. Our state is facing unprecedented
12 shortfalls; unemployment is hovering around 11
13 percent and most economic forecasters predict that
14 Rhode Island will be one of the last states to emerge
15 from the economic downturn.
16 Moreover, the budgetary cutbacks we
17 have sustained over the past several years have had a
18 discernible effect upon our delivery of services. In
19 fiscal year 2010, our final budget was 12 percent
20 less than our original request. This year we
21 anticipate the total reduction to be approximately
22 6.4 percent. As over 80 percent of our budget
23 represents personnel costs, these reductions are 203
1 very difficult to absorb.
2 Our turnover savings rate or vacancy
3 rate is approximately seven percent, resulting in a
4 savings of nearly $5 million. This is up from a rate
5 of 2.3 percent in 2008 and considerably higher than
6 the state average of approximately 2.5 percent. Most
7 of these unfilled vacancies are clerical positions.
8 So although our courts are open, we are barely
9 keeping our heads above water.
10 In addition to the high level of
11 vacancies, all judicial employees, including all
12 judges, along with most state employees, have
13 undergone 12 unpaid days over the last fiscal year
14 and a half. Some of those wages have been deferred
15 and will be paid upon the employee's retirement; the
16 balance will be compensated by additional vacation
17 time.
18 The impact of these budget cuts on our
19 courts has been significant. Although we have not
20 had to suspend all civil trials, we did suspend jury
21 trials in superior court for one day each week for a
22 period of time to enable clerks to catch up on data
23 entry and document filing and we are likely to do so 204
1 again. The superior court business calendar was also
2 suspended temporarily. This calendar has been very
3 well received by the business community, as it
4 expedites cases involving commercial litigants.
5 Budget cutbacks have also had a
6 negative impact on our efforts to increase
7 efficiencies and modernize our courts. We plan to
8 initiate an e-filing system in all of our courts.
9 This would make case management more efficient and
10 ultimately decrease expenses. Unfortunately, we
11 have funds available only to convert the worker's
12 compensation court at this time, which is the
13 smallest of our courts.
14 Our capital budget has been reduced by
15 nearly 80 percent, which jeopardizes our efforts to
16 maintain our courthouses and adequately protect our
17 assets. We have a relatively new courthouse with
18 five unfinished shell courtrooms. Those courtrooms
19 could be finished at a relatively modest cost, yet we
20 lack the funds to do so.
21 Security is also an issue. The
22 sheriffs do not fall under the authority of the
23 judiciary; rather, they come under the executive 205
1 branch, but they are essential to our operations.
2 They are constantly understaffed and we often have
3 too few sheriffs to man all of our courtrooms on a
4 daily basis.
5 Finally, I would submit that it is all
6 too often the case that the effects of inadequate
7 funding fall disproportionately on the most
8 vulnerable and those least able to afford it. The
9 revenue received from IOLTA accounts are Rhode Island
10 Legal Services. Virtually the sole provider of civil
11 legal services to low-income persons in the state has
12 diminished from 975,000 to 245,000 over the past
13 three years. It's cut in half this past year alone.
14 These cuts are simply not sustainable if we are
15 to fulfill our constitutional and statutory
16 responsibilities. We must be provided resources
17 to maintain adequate staffing and to implement
18 technological advances. The simple solution is more
19 revenue on the one hand and increased efficiencies on
20 the other.
21 The long-term answer, I believe, is
22 education. A greater emphasis on civics education
23 and community outreach by both the judiciary and the 206
1 Bar. More immediately, I would suggest that both
2 bench and Bar should educate and lobby our
3 legislators to make sure that they understand what
4 we do and how vitally important our system of justice
5 is.
6 I thank you very much and would be
7 willing to answer any questions.
8 CHAIRWOMAN OLSON: Thank you, Judge.
9 I'm afraid we don't have time for questions at this
10 particular time. However, I think our committee, our
11 team here, would love to consult with you at a later
12 time. Some of your ideas that you mentioned during
13 your presentation were interesting, particularly the
14 outreach ideas.
15 JUSTICE SUTTELL: Certainly.
16 CHAIRWOMAN OLSON: Mr. Chairman, would
17 you approve of that?
18 CHAIRMAN OLSON: Yeah. We plan to
19 engage in continuing dialogue with all of the
20 witnesses and we will be asking questions and also
21 getting suggestions.
22 We are a half-hour over schedule, I
23 already told Mr. McGraw, because the Governor's 207
1 arriving any moment and so if you could do it in a
2 few words, then -- you know, with apologies to
3 everybody. But because it's been so full of
4 substance, we've gotten more substance than we -- we
5 anticipated. So this has all been to the good, but
6 the problem comes in a squeeze like this and so our
7 apologies to you.
8 MR. MCGRAW: There's no problem. Thank
9 you.
10 Just to give a brief introduction, name
11 is Bill McGraw. I'm a clerk of court for the court
12 of general jurisdiction, the trial court, in the
13 capital area of New Hampshire.
14 You've heard primarily from many of
15 the -- those in New Hampshire who I would classify as
16 the generals at central command and I would say my
17 view is that of a buck sergeant in one of the
18 trenches.
19 I was admitted to the Bar in 1977, I've
20 been a court administrator for 30 years in the state
21 of New Hampshire and for the past 20 years served as
22 the clerk of court for the Constitution-created court
23 of general jurisdiction serving the capital area of 208
1 the state of New Hampshire. I have served the
2 administrations of seven superior court justices and
3 have worked with well over 50 superior court judges.
4 I know the Governor's about to arrive.
5 I'm happy to curtail my remarks at any time and
6 submit my written statement, if that would please
7 the committee or to continue until such time --
8 CHAIRMAN OLSON: I think we better do
9 that and engage on one-on-one dialogue. I want to
10 apologize for this, but I'll just stand up, if you
11 don't mind, and thank everybody.
12 Part of the first words in the preamble
13 to the Constitution are "We the people, in order to
14 establish justice." We are not establishing justice.
15 We're failing in that responsibility at the federal
16 level, but particularly at the state level. You've
17 heard example after example after example.
18 You've heard from the chief justices of
19 seven states; we heard from more in Atlanta. This is
20 a devastating situation. A situation that we thought
21 was bad is vastly worse than we even could have
22 imagined. And you've all heard the witnesses from
23 the people that are where the rubber meets the road, 209
1 where the clients, the people that need the
2 assistance of the justice system. We're failing.
3 This task force is going to continue
4 its work and continue the dialogue with the important
5 substance that we've been getting from all of you and
6 we're very, very grateful for your time and your
7 presence here.
8 There will be a reception somewhere out
9 past -- out that door. I don't know exactly where.
10 You're going to be sent in the right direction and
11 thank you all for being here. It's been a great day.
12 (Proceedings concluded at 4:03 p.m.)
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1 C E R T I F I C A T E
2 I, Liza W. Dubois, a Licensed Court Reporter,
3 Certified Realtime Reporter, and Registered Merit
4 Reporter in the State of New Hampshire, hereby
5 certify the proceedings were stenographically
6 reported by me and later reduced to print through
7 computer-aided transcription, and the foregoing is a
8 full and true record of said proceedings.
9 I further certify that I am a disinterested person
10 in the event or outcome of this cause of action.
11 THE FOREGOING CERTIFICATION OF THIS TRANSCRIPT DOES
12 NOT APPLY TO ANY REPRODUCTION OF THE SAME BY ANY
13 MEANS UNLESS UNDER THE DIRECT CONTROL AND/OR
14 DIRECTION OF THE CERTIFYING COURT REPORTER.
15 IN WITNESS WHEREOF, I subscribe my hand and affix
16 my Licensed Court Reporter seal this 3rd day of June
17 2011.
18 ______
19 LIZA W. DUBOIS, LCR, CRR, RMR LCR No. 104 20
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